Duryea v. MetroCast Cablevision of New Hampshire, LLC et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Wanda Duryea
v. Civil No. 15-cv-164-LM
Opinion No. 2017 DNH 078
MetroCast Cablevision of
New Hampshire, LLC, et al.
O R D E R
Wanda Duryea brings this lawsuit against her former
employer, MetroCast Cablevision of New Hampshire, LLC, asserting
claims for unlawful discrimination and harassment under RSA 354-
A and the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq., as well as claims for retaliation under RSA 354-
A:19, the ADA, and the Family and Medical Leave Act (“FMLA”).1
Before the court is defendants’ motion for summary judgment on
all counts. Duryea objects. For the reasons explained herein,
the court grants defendants’ motion for summary judgment on all
claims except those alleging a hostile work environment.
1 Duryea also sues Harron Entertainment Co. and Harron
Communications, L.P., companies apparently associated with
MetroCast Cablevision of New Hampshire, LLC. For simplicity,
the court refers to the defendants, collectively, as
“MetroCast.”
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STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In reviewing the record, the court construes all
facts and reasonable inferences in the light most favorable to
the nonmovant. Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,
115 (1st Cir. 2013). Summary judgment is inappropriate when
“the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
BACKGROUND
On March 30, 2009, MetroCast hired Duryea as a Technical
Service Representative in its Rochester, New Hampshire call
center. Her job duties included providing phone, email, and
chat support to MetroCast customers. Duryea worked at MetroCast
for more than five years, until her termination on August 27,
2014.
Throughout her employment, Duryea suffered from a number of
alleged disabilities, including bilateral tibial tendinitis (a
condition that results in severe foot pain, especially when
walking), asthma and emphysema, daily back pain, ear pain,
vertigo, nausea, tinnitus, and loss of hearing. During her
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employment at MetroCast, Duryea requested that MetroCast provide
certain accommodations for her disabilities. Duryea claims that
as a result of her disabilities and accommodation requests she
suffered discrimination and retaliation, culminating in her
termination. She also claims that supervisors and coworkers
regularly harassed her because she was disabled. The court
summarizes her allegations chronologically.2
Harassment in the Early Years of Duryea’s Employment
In 2009, early in her tenure with MetroCast, Duryea
experienced alleged harassment from a coworker who made
inappropriate comments about her gender and her disabilities and
from supervisors who made repetitive negative comments about her
need to wear sneakers at work.
The incident involving a coworker occurred between June and
August 2009. The coworker, Casey Fontneau, harassed Duryea for
being out sick and using a handicapped parking spot at work. He
made comments like “you don’t look sick to me,” “you don’t look
handicapped to me,” and “those spots are for people in
wheelchairs, you can walk.” Doc. no. 27-2 at ¶ 1. Fontneau
also made derogatory gender-based comments to Duryea about her
2 The record in this case is quite lengthy. The court
recites here only those facts necessary to analyze Duryea’s
claims. In so doing, the court construes the record in the
light most favorable to Duryea, drawing all reasonable
inferences in her favor.
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“breast size” and “girly” selection of candy. Id. On August
13, 2009, Duryea reported Fontneau’s harassment to MetroCast.
MetroCast investigated Duryea’s complaint that same day and
issued Fontneau a written disciplinary notice.
The negative comments about Duryea’s sneakers began in late
2009. MetroCast’s Employee Handbook required all employees at
the Rochester facility to wear “business casual” footwear. Doc.
no. 23-7 at ¶ 8. On November 22, 2009, Duryea requested
permission to wear sneakers at work due to her foot pain. On
November 25, MetroCast granted Duryea’s request. Thereafter,
Duryea claims that several of her supervisors, including Bill
Schwartz, criticized her for wearing sneakers “on a weekly basis
. . . with 20 of those times being by Schwartz himself . . . .”
Doc. no. 27-2 at ¶ 5; see also doc. no. 23-6 at 5 of 10 (“[A]t
least weekly . . . Bill Schwartz or another supervisor commented
that I was wearing sneakers and I had to tell them that I have a
doctor’s note.”). Duryea testified at her deposition that the
negative comments continued for “[m]onths.” See doc. no. 23-3
at 27 of 91. One of Duryea’s former coworkers, Richard
Chojnacki, states in an affidavit that he
overheard various supervisors including Jason
Lamontagne, Roy Rudd, and Tony Graves tell [Duryea]
repeatedly that she shouldn’t be wearing sneakers at
work, and I would hear Wanda respond that she had a
doctor’s note and that it was a work modification.
But they continued to tell her she shouldn’t be
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wearing sneakers. I heard these comments at least
eight times.
Doc. no. 27-4 at ¶ 6. In February 2011, for reasons not
clear from the record, Schwartz was terminated and
Lamontagne became Duryea’s supervisor.
Issues at Work Following Duryea’s Surgery
Beginning in 2011, following surgery on her right foot,
Duryea alleges that she suffered numerous instances of
harassment and discrimination. The first such incident occurred
on January 14, when Duryea returned to work after surgery in a
wheelchair. Upon her return, Schwartz sent her home, telling
her that she could not return to work unless she had a note from
her doctor. Although Duryea obtained a doctor’s note dated
January 14 verifying that she could return to work using a
wheelchair, see doc. no. 23-11 at 1 of 3, she remained out of
work until January 20.
In addition to wearing sneakers, Duryea also used a scooter
or walker at work, when needed, to lessen the pain from walking.
Duryea alleges that, starting in 2011, she was harassed because
of her scooter and walker use. Lamontagne and Graves required
her to keep the walker and scooter away from her desk so that
they were not in the walkway. Duryea says that walking from her
desk to the scooter and walker caused her pain. Duryea states
that “[e]very time I had to use my scooter, from 2011-2014, Tony
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Graves would say, ‘You know, if you quit smoking, you would not
need to use that scooter.’” Doc. no. 23-6 at 3 of 10. In her
objection, Duryea appears to clarify that her use of the scooter
“occurred approximately eight (8) times over three years.” Doc.
no. 27-1 at 4.
Finally, Duryea alleges that she experienced a further
incident of harassment in January or February 2011 at a work-
related dinner. Duryea, who was in a wheelchair at the time,
spilled a drink on the floor during the dinner. Duryea’s
supervisor, Alex Laklas, told her to clean up the floor herself.
Duryea “crawled out of the wheelchair onto the ground, and was
watched by many people . . . .” Doc. no. 27-2 at ¶ 18. Laklas
initially refused to let two coworkers help her clean, but he
eventually allowed a coworker to assist her.
Duryea’s FMLA Leave and Her Raise and Bonus
In addition to the allegations of harassment and
discrimination, Duryea also claims that MetroCast retaliated
against her for taking FMLA leave. Specifically, Duryea alleges
that MetroCast gave her lower raises and bonuses in 2011 and
2012 because she took FMLA leave in those years.
At the end of the calendar year, MetroCast gave each
employee a raise and bonus based on the overall performance
rating that employee received in her annual performance
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evaluation. MetroCast calculates an employee’s overall
performance rating by averaging the employee’s scores in five
different categories. Those five categories have a total of 28
subcategories. One of those 28 subcategories is entitled
“Attendance, punctuality, time management” (“Attendance
Category”).3
In both 2011 and 2012, Duryea received the lowest possible
rating, “Needs Improvement,”4 in the Attendance Category. In its
comments in both years, MetroCast wrote that it “would like to
see her attendance managed better.” See doc. no. 23-3 at 76 of
91, 81 of 91. MetroCast explained in the comments that Duryea
had used her allotted paid time off—vacation, personal, and sick
days—well before the end of each calendar year.5 When Duryea
received her 2012 evaluation, her supervisor told her that she
received a lower rating in the Attendance Category “because of
[her] absences.” Id. at 12 of 91. Duryea claims that MetroCast
retaliated against her by using her FMLA-protected leave, which
3 Beginning in 2013, MetroCast removed the Attendance
Category from its annual performance evaluations.
4 MetroCast defines “Needs Improvement” as “Consistently
falls short of performance standards. Performance has declined
significantly, or employee has not sustained adequate
improvement, as required, since the last performance review.”
See doc. no. 23-3 at 75 of 91.
5 Duryea does not dispute that she exhausted her paid time
off in both 2011 and 2012.
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she took at various times in 2011 and 2012, to calculate her low
ratings in the Attendance Category, thereby reducing her raises
and bonuses in those years.
In 2011, although Duryea’s overall performance rating was
2.7 out of 4, she received a raise (2.66%) higher than the
company standard (2.5%) and received the highest bonus ($1,000)
she was eligible to receive.6 In 2012, Duryea’s overall
performance rating was 2.8 out of 4, and she received a raise
(2.8%) slightly lower than the company standard (3%) and
received a bonus ($933) that was 93% of the highest bonus
($1,000) she could receive. In December 2012, Duryea complained
to her department manager that her FMLA-protected leave had
affected her raise and bonus, but MetroCast did not change
either her raise or bonus.
Duryea’s Request for a Parking Accommodation
Duryea alleges that, in November 2013, MetroCast
discriminated against her by waiting 10 days before
accommodating her request for a parking space closer to the
employee entrance to the building. Prior to 2013, MetroCast
6 MetroCast does not explain how it determined the company
standard raise. MetroCast states that individual employee
“[b]onuses and raises are calculated at the corporate level
based upon the amounts budgeted by the company for annual raises
and bonuses, and the overall performance rating given by the
employee’s supervisor.” Doc. no. 23-7 at ¶ 6.
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permitted employees to enter the building through the main
customer entrance, and Duryea had a designated handicap parking
space near that entrance. By the fall of 2013, MetroCast had a
new employee entrance and announced to employees that they could
no longer enter the building through the main customer entrance
and had to use the employee entrance. There were no handicap
parking spaces located near the employee entrance.
On November 1, 2013, Duryea was experiencing increased foot
pain and asked her department manager, Roy Rudd, if she could
park closer to the employee entrance “during her overtime
shifts.” Doc. no. 27-2 at ¶ 23.7 Rudd verbally denied her
request. Duryea then informed her other supervisors that “she
could not work her scheduled overtime” shifts because she “would
have trouble walking from her car into the building.” Id. at ¶
24.
On November 4, Duryea gave MetroCast a note, signed by Dr.
Nancy Stoll, requesting that she be allowed to park closer to
the employee entrance for the next two weeks until she could
evaluate Duryea and determine the extent of her disability. Dr.
Stoll’s note states:
Please allow Wanda Duryea to park close to the
employee entrance door over the next 2 weeks until she
can make an appointment at our office to assess the
7 It is unclear from the record why Duryea limited her
request to overtime shifts.
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extent of her disability. Unfortunately, as her
covering provider for this practice, I am not able to
confirm that Ms. Duryea is significantly disabled to
require long-term accommodation regarding her parking
situation at work.
Doc. no. 23-15.8 MetroCast did not immediately provide Duryea
with a closer parking space.
On November 5, Duryea left work and went to Barrington
Urgent Care due to intense foot pain, which she claims was
caused by additional walking at work. Duryea was seen by Dr.
Stoll the next day, and Dr. Stoll faxed a note to MetroCast
stating that Duryea “must be excused from work” until November
13. See doc. no. 23-16. The note also states:
She may return to [work] on Wednesday, 11/13/2013,
under the following terms: accommodations to be made
to allow Mrs. Duryea to park closer to the new
employee entrance or provide a key for the front lobby
of the building due to her chronic medical condition.
Id. MetroCast then sent Dr. Stoll an “ADA Certification Form”
to substantiate the requested parking accommodation. See doc.
no. 23-18 at 9-10 of 10.9
8 Dr. Stoll was not Duryea’s regular doctor but was filling
in for her primary care physician.
9 MetroCast uses a standard two-page form, which it refers
to as an “ADA Certification Form,” to substantiate a disabled
employee’s accommodation request. The employee’s physician
signs the form and describes any accommodations that would allow
the employee to perform the essential functions of her job. See
doc. no. 23-18 at 9-10 of 10.
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On November 11, Dr. Stoll returned the form to MetroCast,
confirming Duryea’s need for the parking accommodation. By
letter dated November 11, MetroCast approved the accommodation
request and provided Duryea with a parking space near the
employee entrance.
Duryea’s Request for a Desk Accommodation
Duryea also claims that MetroCast discriminated against her
by denying her a timely accommodation regarding the location of
her desk. On January 27, 2014, after Duryea returned to work
from three weeks of FMLA leave, she discovered that MetroCast
had moved her desk to the far end of the call center, away from
the employee entrance. Duryea told Lamontagne “that walking the
extra distance to her new seat would be painful on her feet.”
Doc. no. 27-2 at ¶ 33. Lamontagne did not offer to move her
desk, but instead explained that Rudd had moved her desk so that
new employees could be closer to Lamontagne for training
purposes.
Duryea made a formal request for a desk accommodation after
returning from a three-month-long medical leave on May 29, 2014.
On that date, Duryea provided MetroCast with a note dated
February 15, 2014, from Dr. Joseph Martinez of Wentworth Health
Partners, stating that “her desk needs to be located as close to
the entrance/exit as possible to limit the distance she is
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required to walk.” Doc. no. 24-2. That same day, MetroCast
faxed an ADA Certification Form to Wentworth Health Partners.
One day later, on May 30, MetroCast moved Duryea’s desk as close
to the employee entrance as possible, pending receipt of the ADA
Certification Form. On June 12, MetroCast received the
completed form and notified Duryea that her desk would continue
to be located as close to the employee entrance as possible.
Assignment of Training Tasks Following Medical Leave
Duryea alleges that during roughly the same period in 2014
that she requested the parking and desk accommodations,
MetroCast also discriminated against her by giving her training
assignments upon her return from two separate medical leaves.
First, when Duryea returned to work after taking leave from
January 31 through February 11, 2014, she claims that MetroCast
assigned to her “tasks that trainee employees are assigned.”
Doc. no. 23-6 at 6 of 10. She had not been assigned such
trainee tasks in over three years. Shortly thereafter, Duryea
took medical leave from February 13 through May 29, 2014, due to
ear pain, vertigo, and nausea. Duryea claims that, upon her
return on May 30, MetroCast placed her on “training status” for
one week, until June 6. Id.
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Termination of Duryea’s Employment
On May 27, 2014, Duryea filed a charge of discrimination
against MetroCast with the Equal Employment Opportunity
Commission (“EEOC”). On June 10, 2014, MetroCast received
notice of the complaint from the EEOC.
Duryea’s health deteriorated in the summer of 2014, as she
began to experience problems with vertigo and breathing. On
June 17, Duryea gave MetroCast a doctor’s note indicating that
she was being treated for vertigo and could work when she did
not experience dizziness. After receiving an ADA Certification
Form from her physician, MetroCast granted Duryea an
accommodation to take intermittent unpaid leave when needed
because of her vertigo.
Then, in July 2014, Duryea experienced asthma and breathing
difficulties unrelated to her vertigo. On July 8, Duryea called
out of work for breathing problems, and she was treated for
bronchial asthma and chronic sinusitis. Duryea’s doctor
indicated that she could return to work on July 28.
On July 22, 2014, MetroCast notified Duryea, that she had
no remaining paid time off—vacation, personal, or sick days—for
the year. MetroCast informed Duryea that she would only be
eligible to take additional time off for: (1) approved unpaid
leave under the FMLA; (2) approved unpaid leave as a reasonable
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accommodation under the ADA; or (3) leave that is specifically
provided for in the Employee Handbook. MetroCast did not
otherwise permit employees to take unpaid time off and remain
employed.
On July 26, while still out of work, Duryea inquired about
her remaining FMLA leave. MetroCast advised her that she was
not eligible to take FMLA leave until November 2014. MetroCast
explained, however, that if her asthma and breathing
difficulties qualified as a disability, Duryea may be eligible
for additional unpaid time off as an ADA accommodation. As
such, MetroCast asked her to obtain an ADA Certification Form
regarding her asthma and breathing difficulties.
On August 14, Duryea’s primary care physician, Dr. Girish
Joshi, sent MetroCast an ADA Certification Form indicating that
Duryea, who remained out of work, had chronic obstructive
pulmonary disease (COPD) and was not expected to improve. Dr.
Joshi stated that Duryea could not perform the essential
functions of her position as a Technical Service Representative
because she had difficulty “with talking and breathing at work
and is not able to talk for long periods on phone.” Doc. no.
24-16. He did not indicate any reasonable accommodations that
would allow her to return to work.
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On August 26, MetroCast’s Director of Human Resources, Joan
McGlinn, spoke with Duryea to determine whether she agreed with
Dr. Joshi that there was no accommodation that would allow her
to return to work. Duryea said that she did not think she would
ever be able to return to work.
On August 27, McGlinn sent Duryea a letter terminating her
employment, which stated in part:
In particular, your health care provider did not list
any accommodation that the Company could provide to
you, and also indicated that your condition was
permanent. When you and I spoke yesterday, I asked
you whether you agreed with your health care provider
or whether you thought that there might be some
accommodation that we could provide to you. In
response, you did not disagree with your health care
provider’s position and indicated that you couldn’t
breathe and that you didn’t think that you would ever
be able to return to work.
Since no accommodation has been identified to allow
you to continue to work, the Company is hereby
terminating your employment, effective today.
Doc. no. 24-17.10
Duryea Files This Lawsuit
On December 15, 2014, Duryea amended her EEOC complaint to
include her termination. On January 6, 2015, the EEOC issued
Duryea a Notice of Right to Sue. On April 4, 2015, Duryea filed
a complaint against MetroCast in state court, alleging claims
10 There is no dispute that the Social Security
Administration had declared Duryea totally disabled as of at
least August 27, 2014.
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for disability discrimination and harassment under RSA 354-A and
the ADA (Counts I and III), retaliatory discharge under RSA 354-
A:19 and the ADA (Counts II and IV), and retaliation under the
FMLA (Count V). See doc. no. 1-1. MetroCast removed the case
to this court and now moves for summary judgment.
DISCUSSION
I. Disability Discrimination / Hostile Work Environment
(Counts I and III)
In Counts I and III, Duryea asserts claims against
MetroCast for disability discrimination and harassment under RSA
354-A and the ADA, respectively. She contends that she was
discriminated against because of her disabilities and subjected
to harassment that created a hostile work environment. The
parties agree that the analysis of Duryea’s claims is the same
under RSA 354-A and the ADA; thus, the court relies on cases
interpreting the ADA to assess both her state and federal
claims. See Posteraro v. RBS Citizens, N.A., 159 F. Supp. 3d
277, 288 (D.N.H. 2016); Gallagher v. Unitil Serv. Corp., No. 14-
cv-20-SM, 2015 WL 5521794, at *15 (D.N.H. Sept. 17, 2015); see
also Madeja v. MPB Corp., 149 N.H. 371, 378 (2003) (relying on
cases interpreting federal employment discrimination law to aid
interpretation of RSA 354-A).
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A. Hostile Work Environment
Duryea first claims that MetroCast employees, including
supervisors, harassed her because of her disabilities. To
succeed on a hostile work environment claim based on disability
harassment, an employee must show that (1) she was disabled, (2)
she was subjected to a hostile environment, and (3) the
hostility was directed at her because of her disability. See
Quiles-Quiles v. Henderson, 439 F.3d 1, 5 & n.1 (1st Cir. 2006).
The employee must present evidence that the harassment was
“sufficiently severe or pervasive so as to alter the conditions
of [her] employment and create an abusive work environment.”
Ponte v. Steelcase Inc., 741 F.3d 310, 320 (1st Cir. 2014)
(quoting Forrest v. Brinker Int’l Payroll Co., 511 F.3d 225, 228
(1st Cir. 2007)). MetroCast argues that the evidence of alleged
harassment in this case is insufficient to constitute a hostile
work environment.
While there is “no mathematically precise test to determine
whether a plaintiff presented sufficient evidence that she was
subjected to a severely or pervasively hostile work
environment,” Pomales v. Celulares Telefonica, Inc., 447 F.3d
79, 83 (1st Cir. 2006) (internal quotation marks and alteration
omitted), she must show that her “workplace was permeated with
discriminatory intimidation, ridicule, and insult that was
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sufficiently severe or pervasive to alter the conditions of
[her] employment and create an abusive working environment.”
Quiles-Quiles, 439 F.3d at 7 (alterations omitted) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). The
harassment must be “both objectively and subjectively offensive,
such that a reasonable person would find it hostile or abusive
and the victim in fact did perceive it to be so.” Ponte, 741
F.3d at 320 (quoting Forrest, 511 F.3d at 228).
Courts consider factors such as the “frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Noviello v. City of Boston, 398 F.3d 76, 92 (1st
Cir. 2005) (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 787-88 (1998)). “Case law is clear that simple teasing,
offhand comments, and isolated incidents (unless extremely
serious) will not amount to discriminatory changes in the terms
and conditions of employment to establish an objectively hostile
or abusive work environment.” Colón-Fontánez v. Municipality of
San Juan, 660 F.3d 17, 44 (1st Cir. 2011) (internal quotation
marks omitted). The court must “distinguish between the
ordinary, if occasionally unpleasant, vicissitudes of the
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workplace and actual harassment.” Id. (quoting Noviello, 398
F.3d at 92).
Here, Duryea points to numerous incidents of alleged
harassment, including the following:
 Fontneau’s disparaging comments in 2009 about her
disability and gender
 Repetitive comments from Duryea’s supervisors from 2009-
2011 about her sneakers, despite their awareness of her
foot-related disability
 The incident at a work-related dinner in 2011 where she
dropped a drink on the floor while in a wheelchair and a
supervisor humiliated her in front of others by demanding
that she clean up the floor by herself
 Graves’s negative comments from 2011-2014 about Duryea’s
use of a scooter, despite his awareness that she used a
scooter as an accommodation for her foot-related
disability.
MetroCast argues, in passing, that Duryea’s claims of
disability-based harassment are time barred. However, construed
favorably to Duryea, her hostile work environment claim alleges
a continuing violation. See Tobin v. Liberty Mut. Ins. Co., 553
F.3d 121, 130 (1st Cir. 2009) (a continuing violation “is
composed of a series of separate acts that collectively
constitute one ‘unlawful employment practice’” (quoting Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002))); see
also Ayala v. Shinseki, 780 F.3d 52, 57 (1st Cir. 2015) (“Under
the ‘continuing violation’ doctrine, a plaintiff may obtain
recovery for discriminatory acts that otherwise would be time-
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barred so long as a related act fell within the limitations
period.” (quoting Tobin, 553 F.3d at 130)); Johnson v. Univ. of
P.R., 714 F.3d 48, 53 (1st Cir. 2013) (“Discrete acts and
hostile work environment claims are ‘different in kind,’ because
hostile work environment claims by their nature involve repeated
conduct and a single act of harassment may not be actionable on
its own.” (internal citations omitted)). Construed in Duryea’s
favor, she has described a pattern of disability-related
harassment that continued from 2009 through at least January
2014, when Graves made comments about her use of the scooter.
“As [the First Circuit has] observed, the hostile
environment question is commonly one of degree—both as to
severity and pervasiveness—to be resolved by the trier of fact
on the basis of inferences drawn from a broad array of
circumstantial and often conflicting evidence.” Billings v.
Town of Grafton, 515 F.3d 39, 50 (1st Cir. 2008) (internal
quotation marks omitted). Here, based on the number of
supervisor-initiated comments and incidents at issue, and the
severity of the incident at the work-related dinner, the
question of whether the alleged disability harassment was severe
or pervasive enough to constitute a hostile work environment
should be resolved by a jury. Accordingly, the court denies
MetroCast’s motion for summary judgment on Counts I and III with
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respect to Duryea’s hostile work environment claims based on
disability harassment.11
B. Disability Discrimination
Duryea also claims that MetroCast discriminated against her
because of her disabilities. Her discrimination claim appears
to assert two distinct theories of liability: (1) failure to
accommodate her disabilities and (2) disparate treatment. See
Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002). The
court analyzes each claim in turn.
1. Reasonable Accommodation Claim
Employers are required to make “reasonable accommodations”
for “the known physical or mental limitations” of an otherwise
“qualified individual with a disability.” See 42 U.S.C. §
12112(b)(5)(A); RSA 354-A:7, VII(a). An employee may bring a
discrimination claim based on her employer’s failure to
reasonably accommodate her disability. See, e.g., Lang v. Wal-
Mart Stores East, L.P., 813 F.3d 447, 454 (1st Cir. 2016). In
order to survive a motion for summary judgment on a reasonable
11 In Duryea’s objection to MetroCast’s summary judgment
motion, she advances a constructive-discharge claim for the
first time. Duryea did not bring a claim for constructive
discharge in her complaint, and she cannot amend the complaint
through her objection. See Asociación de Suscripción Conjunta
del Seguro de Responsabilidad Obligatorio v. Juarbe-Jiménez, 659
F.3d 42, 53 (1st Cir. 2011).
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accommodation claim, the employee must produce enough evidence
for a reasonable jury to find that (1) she was disabled within
the meaning of the ADA; (2) she was an “otherwise qualified
individual,” meaning she was able to perform the essential
functions of her job, either with or without a reasonable
accommodation; and (3) the defendant, despite knowing of the
employee’s disability, did not reasonably accommodate it. See
Valle-Arce v. P.R. Ports Auth., 651 F.3d 190, 198 (1st Cir.
2011); Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003).
Duryea claims that MetroCast failed to provide reasonable
accommodations in response to her requests for a parking space
and desk near the employee entrance. Although MetroCast granted
both accommodations upon receiving disability paperwork from her
physicians, Duryea contends that MetroCast failed to provide the
accommodations within a reasonable period of time because of the
delay between her requests and MetroCast’s approval.
Duryea provides no support for her argument that an
employer’s delay while waiting for supporting medical
documentation constitutes a failure to provide a reasonable
accommodation, and neither RSA 354-A nor the ADA requires an
employer to grant accommodation requests within a certain number
of days. Even viewing the facts most favorably to Duryea, no
reasonable jury could conclude that MetroCast’s delay in
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23
providing these accommodations constitutes disability
discrimination. Accordingly, Duryea’s claim that MetroCast
failed to reasonably accommodate her disabilities is
insufficient to get to a jury.
2. Disparate Treatment Claim
Duryea also alleges disability discrimination based on
disparate treatment. To establish a prima facie case of
disability discrimination based on disparate treatment, an
employee must show “(1) that she was ‘disabled’ within the
meaning of the ADA; (2) that she was able to perform the
essential functions of her job with or without accommodation;
and (3) that she was discharged or adversely affected, in whole
or in part, because of her disability.” Jones v. Walgreen Co.,
679 F.3d 9, 14 (1st Cir. 2012) (quoting Ruiz Rivera v. Pfizer
Pharms., LLC, 521 F.3d 76, 82 (1st Cir. 2008)). If the
plaintiff establishes a prima facie case, then the employer must
articulate a legitimate, non-discriminatory reason for its
action, and, if the employer does so, the burden then shifts
back to the plaintiff to show that the employer’s justification
is mere pretext. See Tobin v. Liberty Mut. Ins. Co., 433 F.3d
100, 105 (1st Cir. 2005).
“An adverse employment action typically involves discrete
changes in the terms of employment, such as hiring, firing,
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24
failing to promote, reassignment with significantly different
responsibilities, or a decision causing significant change in
benefits.” Garmon v. Nat’l R.R. Passenger Corp., 844 F.3d 307,
314 (1st Cir. 2016) (internal quotation marks omitted). “To be
adverse, an employment action must materially change the
conditions of plaintiffs’ employ.” Cham v. Station Operators,
Inc., 685 F.3d 87, 94 (1st Cir. 2012) (internal quotation marks
omitted). The First Circuit has indicated that to constitute an
adverse action, the employer must either
(1) take something of consequence from the employee,
say, by discharging or demoting her, reducing her
salary, or divesting her of significant responsi-
bilities, or (2) withhold from the employee an
accouterment of the employment relationship, say,
by failing to follow a customary practice of
considering her for promotion after a particular
period of service.
Blackie v. Maine, 75 F.3d 716, 725 (1st Cir. 1996) (internal
citations omitted). “[T]he mere fact that an employee is
displeased by an employer’s act or omission does not elevate
that act or omission to the level of a materially adverse
employment action.” Id.
Duryea’s argument regarding what constitutes an adverse
employment action for purposes of this claim is less than clear.
The only allegation that comes close to constituting an adverse
action is her claim that MetroCast gave her a quasi-demotion by
requiring her to complete assignments for employees in training
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on two occasions after she returned to work following extended
medical absences.12 Duryea argues that it “was insulting to be
given training tasks after several years of employment.” Doc.
no. 27-1 at 24.
Despite Duryea’s characterization of the training
assignments as a temporary demotion, MetroCast placed her on
training status for only a limited period of time, and she did
not lose status, wages, or benefits as a result. No reasonable
jury could conclude that placing Duryea on temporary training
status was an adverse employment action related to her
disabilities. Moreover, even assuming Duryea could establish
that placing her on temporary training status was an adverse
action, she has presented no evidence that MetroCast’s stated
reason for this action was a pretext for discriminatory animus.
Duryea does not allege that MetroCast treated other employees
12 Duryea’s complaint mentions a number of other incidents,
but not one constitutes an adverse action based on her
disabilities. For example, Duryea argues that MetroCast
discriminated against her by requiring her to obtain a doctor’s
note before allowing her to return to work in a wheelchair,
causing her to miss several days of work. But, Duryea was not
terminated, demoted, or placed into any lesser employment status
as a result of this incident. Additionally, Duryea has failed
to show that MetroCast would not have required other employees
to obtain a doctor’s note under the same or similar
circumstances.
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returning from extended leaves of absences any differently, and
there is no evidence in the record that MetroCast treated Duryea
differently because of her disabilities when it gave her the
training assignments. In fact, the record shows that MetroCast
placed employees returning from extended leaves of absence,
regardless of the reason for that leave, on temporary training
status to become familiar with any new programs, policies, or
procedures that went into effect while they were out of work.
See doc. no. 23-4 at 2 of 4; doc. no. 23-5 at 3-4 of 4.
In sum, there is no genuine dispute of material fact as to
whether MetroCast discriminated against Duryea on the basis of
her disabilities. Accordingly, MetroCast is entitled to summary
judgment on Duryea’s disparate treatment and failure to
accommodate claims in Counts I and III.
II. Retaliatory Discharge (Counts II and IV)
In Counts II and IV, Duryea asserts claims against
MetroCast for retaliatory discharge under RSA 354-A:19 and the
ADA, 42 U.S.C. § 12203, respectively. Because the analysis is
the same under RSA 354-A and the ADA, the court again relies on
cases interpreting the ADA to assess both Duryea’s state and
federal retaliation claims. See Madeja, 149 N.H. at 378.
Duryea alleges that MetroCast terminated her employment because
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she requested accommodations for her disabilities and filed a
charge of discrimination with the EEOC.13
“A retaliation claim under the ADA is analyzed under the
familiar burden-shifting framework drawn from cases arising
under Title VII.” Kelley, 707 F.3d at 115. To make out a prima
facie retaliation claim under the ADA, the plaintiff must show
that “(1) she engaged in protected conduct; (2) she experienced
an adverse employment action; and (3) there was a causal
connection between the protected conduct and the adverse
employment action.” Id. (internal quotation marks omitted). If
the plaintiff makes a prima facie showing of retaliation, the
burden shifts to the defendant to articulate a legitimate, non-
retaliatory reason for its employment decision. Id. Finally,
if the defendant meets this burden, then the plaintiff “must
show that the proffered legitimate reason is pretextual” and
that the employment decision was “the result of the defendant’s
retaliatory animus.” Id. (internal quotations marks omitted).
13 In her objection to MetroCast’s summary judgment motion,
Duryea characterizes Counts II and IV as asserting claims for
retaliatory discharge and retaliatory harassment. Counts II and
IV in Duryea’s complaint clearly allege “retaliatory
termination” based on Duryea’s accommodation requests and EEOC
complaint. See doc. no. 1-1 at ¶ 60, 61, 68. However, they do
not allege retaliatory harassment. While the complaint includes
allegations concerning harassment, there is no indication that
Counts II and IV are based on that conduct. Duryea cannot amend
the complaint through her objection. See Juarbe-Jiménez, 659
F.3d at 53.
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MetroCast does not dispute that Duryea engaged in protected
conduct by requesting reasonable accommodations for her
disabilities and filing an EEOC complaint. Nor does it dispute
that she experienced an adverse action when her employment was
terminated. Rather, MetroCast argues that Duryea’s retaliation
claim fails because the record contains insufficient evidence
for a reasonable jury to conclude that she would not have been
terminated but for the protected conduct, and, in any event, she
cannot establish pretext.
A. Causal Connection
To establish causation, “the plaintiff must show a nexus
between the protected conduct and the alleged retaliatory act.”
Colón-Fontánez, 660 F.3d at 37 (citations omitted). Duryea
makes no argument as to causation in her objection or surreply.
The record contains no evidence suggesting that MetroCast
harbored any retaliatory animus on the basis of either Duryea’s
requests for accommodations or her filing of the EEOC complaint.
Although Duryea does not argue causation, the court notes
that temporal proximity alone can, in certain circumstances,
establish causation. See id. (“One way of showing causation is
by establishing that the employer’s knowledge of the protected
activity was close in time to the employer’s adverse action.”
(internal quotation marks omitted)); DeCaire v. Mukasey, 530
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29
F.3d 1, 19 (1st Cir. 2008) (“[O]ur law is that temporal
proximity alone can suffice to meet the relatively light burden
of establishing a prima facie case of retaliation.” (internal
quotation marks omitted)). Here, MetroCast terminated Duryea’s
employment approximately two and one-half months after MetroCast
received notice of the EEOC complaint. Viewing the evidence in
the light most favorable to Duryea, such temporal proximity
could be sufficient to establish causation. See Clark Cty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (“The cases that
accept mere temporal proximity between an employer’s knowledge
of protected activity and an adverse employment action as
sufficient evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very
close.’” (citations omitted)); Planadeball v. Wyndham Vacation
Resorts, Inc., 793 F.3d 169, 178 (1st Cir. 2015) (holding that
“two-month gap between protected activity and a material adverse
action is sufficiently short to establish a prima facie case of
retaliation”); Sánchez-Rodríguez v. AT&T Mobility P.R., Inc.,
673 F.3d 1, 15 (1st Cir. 2012) (holding that three-month gap
between filing EEOC complaint and employer discipline was “close
enough to suggest causation”). The court will presume that
Duryea has established a prima facie case of retaliation. As
explained below, however, Duryea fails to show pretext.
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B. Legitimate Non-retaliatory Reason
Duryea does not dispute that MetroCast articulated a
legitimate, non-retaliatory reason for terminating Duryea’s
employment. On August 14, 2014, Dr. Joshi informed MetroCast
that Duryea could not perform the essential functions of her job
because she had COPD. Dr. Joshi stated that Duryea was not
expected to improve, and he did not indicate any accommodations
that would allow her to return to work. On August 26, MetroCast
spoke with Duryea. Duryea did not disagree with Dr. Joshi’s
prognosis and indicated that she did not think she would ever be
able to return to work. On August 27, MetroCast terminated
Duryea’s employment because she had exhausted her available
leave time and could no longer perform the essential functions
of her job, with or without a reasonable accommodation.
C. Pretext
Because MetroCast has articulated a legitimate, non-
retaliatory reason for terminating Duryea’s employment, Duryea
must show that MetroCast’s stated reason is mere pretext offered
to disguise its retaliatory animus. In order to show pretext,
Duryea must show both that MetroCast’s reason for terminating
her was false, and that MetroCast actually terminated her in
retaliation for her accommodation requests and EEOC complaint.
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31
See Lang, 813 F.3d at 457 (citing St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (1993)). Temporal proximity alone is
insufficient to meet her burden. See, e.g., Planadeball, 793
F.3d at 179; Hubbard v. Tyco Integrated Cable Sys., Inc., 985 F.
Supp. 2d 207, 234 (D.N.H. 2013).
Duryea does not argue that MetroCast’s stated reason for
terminating her employment was false, nor does she point to any
evidence of pretext. Duryea instead seems to suggest that
MetroCast only requested an ADA Certification Form regarding her
asthma and breathing difficulties so that MetroCast would have a
reason to fire her. No reasonable jury could come to such a
conclusion.
As of August 2014, Duryea had exhausted her available paid
and unpaid time off, including FMLA leave. Duryea was not
entitled to remain employed if she took additional unpaid time
off. MetroCast, however, attempted to provide Duryea with
intermittent unpaid leave as an accommodation for her asthma and
breathing difficulties, which would have allowed her to remain
employed.
The uncontroverted evidence shows that MetroCast requested
the ADA Certification Form not because it was looking for a
reason to fire Duryea, but in an effort to accommodate her
asthma and breathing difficulties so that she could take
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32
additional unpaid time off and keep her job. Despite
MetroCast’s efforts, Dr. Joshi certified that no such accommo-
dation would allow Duryea to return to work. The record
establishes that MetroCast only terminated Duryea’s employment
after it learned that she could not return to work—and after
Duryea told MetroCast that she did not think she would ever be
able to return to work—with or without the accommodation of
additional unpaid leave. Duryea has pointed to no evidence
suggesting that this was not the actual reason for her
termination.
Moreover, Duryea provides no evidence that MetroCast
harbored retaliatory animus on the basis of either her EEOC
complaint or accommodation requests. In fact, MetroCast
actually granted every accommodation she requested. See Soileau
v. Guilford of Maine, Inc., 105 F.3d 12, 17 (1st Cir. 1997)
(“Evidence that an employer willingly granted an employee’s
request for an accommodation, though by no means dispositive of
the matter, tends to militate against making an inference of
retaliation . . . .”); cf. Kelley, 707 F.3d at 117 (employer’s
resistance and confrontation in response to employee’s
accommodation requests was evidence of pretext). Notably, in
July 2014, after receiving notice of her EEOC complaint,
MetroCast offered and granted Duryea intermittent leave as an
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33
accommodation, which allowed her to miss work when she
experienced vertigo symptoms. The record shows that throughout
Duryea’s five years of employment, MetroCast routinely made an
effort to accommodate her disabilities and allowed her to take
time off when needed.
Duryea points to statements allegedly made by three
supervisors that suggest those supervisors viewed her as
“faking” her disabilities and “trying to not work.” See doc.
no. 27-4 at ¶ 10. Two of those supervisors were overheard
saying that they “had decided to let Wanda go and that they
needed to up come with an excuse to fire her.” Id. at ¶ 11.
There are several problems with Duryea’s reliance upon
these statements as support for her pretext argument. First,
there is no evidence that those supervisors played any role in
Duryea’s termination. Second, there is no evidence suggesting
either a temporal or causal relationship between the statements
and Duryea’s termination. Indeed, Duryea provides no evidence
as to when any of these statements were made.
“A ‘stray remark’ is a statement that, while on its face
appears to suggest bias, is not temporally or causally connected
to the challenged employment decision and thus not probative of
discriminatory animus.” Barry v. Moran, 661 F.3d 696, 707 (1st
Cir. 2011). “‘[S]tray workplace remarks,’ as well as statements
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34
made either by nondecisionmakers or by decisionmakers not
involved in the decisional process, normally are insufficient,
standing alone, to establish either pretext or the requisite
discriminatory animus.” Gonzalez v. El Dia, Inc., 304 F.3d 63,
69 (1st Cir. 2002). Comments are not probative of pretext when
“they were made in a situation temporally remote from the date
of the employment decision, or were not related to the employ-
ment decision in question, or were made by nondecisionmakers.”
Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 36 (1st Cir.
2001) (internal quotation marks and alteration omitted).
Here, there is no evidence linking the comments by Duryea’s
supervisors to her ultimate termination in August 2014. Thus,
even assuming the comments suggest that certain supervisors
harbored discriminatory animus toward her, Duryea fails to
explain any temporal or causal connection between those undated
comments and MetroCast’s decision to terminate Duryea. Although
certain supervisors may have wanted to fire Duryea, there is no
evidence in the record that those supervisors played any role in
MetroCast’s decision to terminate Duryea’s employment. See,
e.g., Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d
46, 55 (1st Cir. 2000) (“Typically, statements made by one who
neither makes nor influences [a] challenged personnel decision
are not probative in an employment discrimination case.”
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(internal quotation marks omitted)); Laurin v. Providence Hosp.,
150 F.3d 52, 58 (1st Cir. 1998) (“[S]tatements by decisionmakers
unrelated to the decisional process itself normally are
insufficient to establish discriminatory animus.” (internal
quotation marks omitted)). Given the “compelling stated reason”
for Duryea’s termination, see Rivera-Aponte v. Rest. Metropol
#3, Inc., 338 F.3d 9, 12 (1st Cir. 2003), the comments unrelated
to her termination are insufficient to create a triable issue on
pretext.
In sum, viewing the record in Duryea’s favor, no reasonable
jury could conclude that MetroCast’s stated reason for her
termination—that by her own admission she could not return to
work due to her medical condition—was mere pretext, and that
MetroCast actually terminated Duryea in retaliation for
requesting accommodations and filing an EEOC complaint.
Accordingly, MetroCast is entitled to summary judgment on Counts
II and IV.
III. FMLA Retaliation (Count V)
In Count V, Duryea alleges that MetroCast retaliated
against her for taking FMLA leave by counting FMLA-protected
absences against her in calculating her annual raises and
bonuses in 2011 and 2012.
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“[T]he FMLA prohibits retaliation against employees who
take FMLA leave.” Pagán-Colón v. Walgreens of San Patricio,
Inc., 697 F.3d 1, 8 (1st Cir. 2012). For example, “employers
cannot use the taking of FMLA leave as a negative factor in
employment actions, such as hiring, promotions or disciplinary
actions; nor can FMLA leave be counted under ‘no fault’
attendance policies.” Id. (quoting 29 C.F.R. § 825.220(c)). To
make out a prima facie case of FMLA retaliation, an employee
must show: “(1) she availed herself of a protected FMLA right;
(2) she was adversely affected by an employment decision; and
(3) there was a causal connection between her protected conduct
and the adverse employment action.” Carrero-Ojeda v. Autoridad
de Energia Electrica, 755 F.3d 711, 719 (1st Cir. 2014)
(internal quotation marks and alteration omitted).
Duryea alleges that MetroCast used her FMLA leave as a
negative factor in calculating her raise and bonus. In both
2011 and 2012, MetroCast gave Duryea the lowest possible rating
in the Attendance Category, which measured an employee’s annual
performance in terms of attendance, punctuality, and time
management. Duryea claims that she received the low ratings
because she took time off from work, including FMLA-protected
absences. And, because the Attendance Category was one of 28
subcategories MetroCast used to calculate raises and bonuses,
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37
Duryea claims that her raises and bonuses in 2011 and 2012 were
lower than they otherwise would have been if she had not taken
FMLA leave. MetroCast argues that Duryea’s FMLA claim is barred
by the FMLA’s statute of limitations. The court agrees.
A person alleging a violation of the FMLA generally must
bring her claim within two years from “the date of the last
event constituting the alleged violation for which the action is
brought.” 29 U.S.C. § 2617(c)(1). However, in the case of a
willful violation of the FMLA, the statute of limitations is
extended to three years. 29 U.S.C. § 2617(c)(2). Duryea filed
her complaint on April 4, 2015, more than three years after she
received her 2011 raise and bonus, but only two years and four
months after she received her 2012 raise and bonus. Thus, while
Duryea’s 2011 claim is time barred, her 2012 claim would be
within the three-year statute of limitations for a willful
violation. Duryea must therefore present evidence that
MetroCast willfully retaliated against her in 2012 for taking
FMLA leave.
Although the FMLA does not define “willful,” the First
Circuit has held that “in order to establish a willful violation
of the FMLA, a plaintiff must show that ‘the employer either
knew or showed reckless disregard for the matter of whether its
conduct was prohibited by the statute.’” Hillstrom v. Best
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38
Western TLC Hotel, 354 F.3d 27, 33 (1st Cir. 2003) (quoting
McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988)).
There is no such evidence in the record here.
Duryea’s 2012 performance evaluation indicates that her low
rating in the Attendance Category was based on poor management
of her paid time off, since she ran out of paid absences well
before the end of the calendar year. The only evidence Duryea
points to even remotely suggesting that MetroCast considered her
unpaid FMLA leave as part of the evaluation is the single
comment from Duryea’s supervisor that she lost points in the
Attendance Category because she had taken time off from work,
which Duryea argues may have included both her paid and unpaid
absences. But to establish a willful violation of the FMLA,
Duryea must do more than speculate that MetroCast may have
considered FMLA leave as part of her rating in the Attendance
Category. Duryea must show that MetroCast knew it would violate
the FMLA, or that MetroCast recklessly disregarded Duryea’s FMLA
rights, when it gave Duryea her rating in the Attendance
Category and then used that rating as one of 28 subcategories to
calculate her raise and bonus. She has presented no such
evidence.
In 2012, MetroCast gave Duryea a raise (2.8%) slightly
lower than the company standard (3%) and a bonus ($933) slightly
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39
below the highest bonus ($1,000) for which she was eligible to
receive. No reasonable jury could find that MetroCast willfully
violated Duryea’s FMLA rights when it calculated her raise and
bonus in 2012.
Therefore, Duryea’s FMLA claim is barred by the two-year
statute of limitations. See 29 U.S.C. § 2617(c)(1).
Accordingly, MetroCast is entitled to summary judgment on Count
V.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary
judgment (doc. no. 23) is denied as to Counts I and III with
respect to Duryea’s hostile work environment claims, and is
otherwise granted.
The court’s case manager will reschedule the trial, the
final pretrial conference, and all other deadlines. All pending
motions in limine are denied without prejudice to the parties’
right to file motions in limine relevant to Duryea’s hostile
work environment claims.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
April 21, 2017
cc: Debra Weiss Ford, Esq.
Leslie H. Johnson, Esq.
K. Joshua Scott, Esq.
Martha Van Oot, Esq.
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