Harding v. Cianbro Corporation

436 F.Supp.2d 153

Ronald HARDING, Plaintiff, v. CIANBRO CORPORATION, Defendant.

Civil Action No. 04-158-B-W.

United States District Court, D. Maine.

June 5, 2006.

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Jeffrey Neil Young, McTeague, Higbee, Case, Cohen, Whitney & Toker, P.A., Topsham, ME, for Plaintiff.

Ella L. Brown, Katharine I. Rand, Pierce, Atwood LLP, Portland, ME, for Defendant.

AMENDED¹ ORDER ON DEFEDANT CIANBRO CORPORTION'S MOTION FOR SUMMARY JUDGMENT

WOODCOCK, District Judge.

Afflicted with fibromyalgia,² osteoarthritis,³ and chronic back pain, Plaintiff Ronald Harding challenges Defendant Cianbro Corporation's (Cianbro) termination of his employment as an electrical superintendent. Concluding Mr. Harding has raised genuine issues of material fact on the contested counts, this Court denies Cianbro's Motion for Summary Judgment.

I. FACTUAL BACKGROUND

A. The Parties

Defendant Cianbro is a Maine-based contractor, which currently employs between 1,900 and 2,000 individuals. Pl.'s Stat. of Mat. Facts (PSMF) ¶ 1 (Docket # 48); Def's Resp. to Pl.'s Stat. of Mat. Facts (DRPSMF) Part II ¶ 1 (Docket # 77). Thirty-two are project managers and 64 are superintendents. DRPSMPart II ¶ 1. Prior to his termination in September of 2002, Plaintiff Ronald Harding spent approximately 18½ years employed by Cianbro. PSMF ¶ 2. He began his career as an electrical foreman and, in 1988, he was promoted to electrical superintendent.⁴ Id.; DRPSMF—Part II ¶ 2. Although Mr. Harding worked on many Cianbro projects in New England and upstate New York, he was never in charge of a work site. PSMF ¶ 2; DRPSMF—Part II ¶ 2.

B. Mr. Harding's Claims

On September 9, 2004, based on a claim of wrongful termination of employment, Mr. Harding filed suit alleging under Count I, a violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., under Count III, a violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq., and under Count V, a violation of the Maine Human Rights Act (MHRA), M.R.S.A. § 4551 et seq.⁵, ⁶

C. Mr. Harding's Physical Ailments

Mr. Harding had a number of physical ailments during his career at Cianbro. The first ailment, chronic back pain, was caused by a car accident that took place when Mr. Harding was just eighteen years old. PSMF ¶ 11; DRPSMF—Part II ¶ 11. To relieve his symptoms, Mr. Harding treated regularly with a chiropractor, Dr. Thomas Chasse. PSMF ¶ 11; DRPSMF—Part II ¶ 11. Nick Bell, Cianbro's Electrical Manager for the northern New England region, was aware of Mr. Harding's back problems over the years and his frequent treatment with Dr. Chasse. PSMF ¶ 12; DRPSMF—Part II ¶ 12.

On October 27, 1995, Mr. Harding went to Dr. Ringel, a sleep specialist, because he was experiencing problems with "restless sleep" and remaining awake during the day.⁷ PSMF ¶ 13; DRPSMF—Part II ¶ 13. Dr. Ringel described Mr. Harding on this first visit:

10-27-95 Ronald Harding

48 year old male appears in my office for the first time.

1. Smoking. The patient smokes a pack of cigarettes a day. He is a sedentary, obese male who looks at high risk. He has never tried patches before. He has been discouraged by the failure of others. I will begin him on Panitrol 21 mgs. patch daily along with 7 mgs. in addition if he needs. The patient states he gained about 20 lbs. the first week and a half he started to stop smoking in the past. He states he gets real nervous at times. Will add Atovan .5 mgs. 1-2 tablets every 4-6 hours as needed for nerves ....

2. Fatigue. This obese male states he fell asleep while waiting for me in the office. He describes restless sleeping for the last several years. His wife states he does snore at times. He often falls asleep whenever he sits in any quiet position.

A: I suspect that this man many [sic] have obstructive sleep apnea as he almost dozed off while he was talking to me in the office. We will arrange for a sleep apnea study. Also get a blood count, thyroid study, blood sugar, urinalysis, sedrate. I have asked that he be scheduled for a physical and medical release requested from Dr. McDermott. I have told him through Nancy that he is not to drive as this man has been falling asleep in the waiting room.

PSMF, att. 1 at Bates No. 173.

Eventually, Dr. Ringel ruled out sleep apnea and considered other diagnoses. In a December 11, 1995 office note, he described Mr. Harding's symptoms and possible alternative diagnoses:

Ronald Harding is a 48-year-old man who was referred from Dr. Bennett because of a possible sleep disturbance. The primary consideration is narcolepsy. The patient's chief complaint is muscle aching. He says that he sleeps, 7-9 hours every night and will get up feeling tired. He says that his muscles have ached on and off for about a year . . . . He has basically migrating aches and pains in arms, legs and back. He has had no loss of strength .... He denies any w[eight] gain or loss. He denies any change in appetite. He denies any other constitutional symptoms. He says that he will feel during the day as if it is very difficult for him to finish his work and that he will fall asleep if he sits still for 10 or 15 minutes. I questioned him rather carefully and cannot really identify any sleep attacks or other ... complaints.

The patient will usually go to bed between 8:00 and 9:00 p.m. and on a weekday will wake up at 4:45 a.m. On a weekend, he will get up about 7:00 a.m. He does not have significant headaches.

...

He apparently does wake up at night but will fall asleep fairly successfully after getting up to the bathroom. He wakes up achy all the time. He denies any joint pains per se but says this is all in the muscle.

...

Differential diagnosis would include fibromyalgia, arthritis, or perhaps even a collagen vascular disease.

Id. at Bates Nos. 256-57. Dr. Bennett, Mr. Harding's primary care physician, diagnosed Mr. Harding with fibromyalgia. PSMF ¶ 15.

On March 25, 2005, nearly three years after Cianbro's termination of his employment, Mr. Harding saw Dr. Lisa Fitzgerald, a Boston rheumatologist affiliated with Harvard Medical School. Dr. Fitzgerald, after taking x-rays of Mr. Harding, diagnosed him with osteoarthritis of the thumbs in addition to confirming his prior diagnosis of fibromyalgia. Id. ¶ 18. Dr. Fitzgerald believes Mr. Harding had osteoarthritis at least as far back as 2002 because "[u]sually to get these x-ray results that he [Mr. Harding] has, you would typically have that condition [osteoarthritis] for three to five years." Dep. of Lisa Fitzgerald at 62-63 (Docket # 30); PSMF ¶ 19; DRPSMF—Part II ¶ 19. According to Dr. Fitzgerald, Mr. Harding's difficulty grasping and exercising fine motor skills was actually attributable to his osteoarthritis, not his fibromyalgia. PSMF ¶ 20. Dr. Fitzgerald also opined that Mr. Harding's fibromyalgia condition remained largely unchanged from 2002 to 2005.⁸ Id. ¶ 66.

In response to her findings of osteoarthritis and fibromyalgia, Dr. Fitzgerald imposed permanent restrictions with regard to Mr. Harding's activities. Id. ¶¶ 67, 77. She restricted Mr. Harding in the following ways: push/pull—not more than 21 minutes per hour; twist/bend—not more than 21 minutes per hour; stand/walknot more than 21 minutes per hour; overhead work—not more than 9 minutes per hour; sit—not more than 21 minutes per hour; lift and carry less than 10 pounds— not more than 21 minutes per hour; lift and carry greater than 10 pounds—not more than 9 minutes per hour; and, climb—not more than 9 minutes per hour.⁹' ¹⁰Dep. of Lisa Fitzgerald, exh. 3 (attached to Docket # 48); PSMF ¶¶ 76, 86, 88, 92, 101, 105, 109. The restrictions upon Mr. Harding's ability to lift, push, pull, bend, grasp, sit, stand, and engage in overhead work limit him to performing sedentary or light work. PSMF ¶ 78. Cianbro has admitted that Mr. Harding is no longer able to work as an electrician. DRPSMPart II ¶ 114. Dr. Fitzgerald also concluded that Mr. Harding had a significant sleep disorder based upon her review of his medical records, her own testing and examination, and Mr. Harding's statements that he would only sleep three to four hours every six to eight hours he spent in bed and, while in bed, he would wake up in pain and have to change position before falling back to sleep.¹¹ PSMF ¶ 73.

D. Cianbro's Knowledge of Mr. Harding's Physical Ailments

In the summer of 2002, approximately six weeks prior to Mr. Harding's termination, Bill Marquis, a Cianbro Safety Manager, observed Mr. Harding limping. PSMF ¶ 27; DRPSMF—Part II ¶ 27. Mr. Marquis asked Mr. Harding if he had injured himself on the job. PSMF ¶ 28. Mr. Harding responded that he had not been injured on the job, but that the source of his limp was fibromyalgia. Id. ¶ 29. Mr. Marquis told Mr. Harding that his wife also had fibromyalgia. Id. ¶ 30. Mr. Marquis inquired as to how long Mr. Harding had been afflicted with fibromyalgia and Mr. Harding responded that he had had the condition for more than seven years. Id. ¶¶ 32, 33. Mr. Marquis told Mr. Harding that fibromyalgia was totally incapacitating to most people after eight to ten years and Mr. Harding responded that he was already aware of that. Id. ¶¶ 33, 34. Mr. Marquis subsequently researched fibromyalgia on the Internet and presented Mr. Harding with three pages of information within a week of their initial conversation. Id. ¶ 35. The research confirmed both Mr. Marquis' and Mr. Harding's mistaken belief that fibromyalgia is a progressive disease which renders its victims totally disabled within eight to ten years.¹² PSMF ¶¶ 36, 37. Mr. Marquis did not share his knowledge of Mr. Harding's condition with anyone else at Cianbro prior to Mr. Harding's termination.¹³ DRPSMF—Part II ¶ 37A.

In early August 2002, approximately 1½ weeks after the conversation between Mr. Harding and Mr. Marquis, Nick Bell, Cianbro's Electrical Manager for the northern New England region, observed Mr. Harding having difficulty climbing...