Leavitt v. Sw & B Constr. Co. Llc

766 F.Supp.2d 263

24 A.D. Cases 878

42 NDLR P 211

Gregory LEAVITT, Plaintiff,

v.SW & B CONSTRUCTION COMPANY, LLC, Defendant.

No. 1:10–cv–00030–JAW.

United States District Court, D. Maine.

Feb. 25, 2011.

Charles E. Gilbert, III, Julie D. Farr, Gilbert & Greif, P.A., Bangor, ME, for Plaintiff.Michael A. Nelson, Jensen Baird Gardner & Henry, Portland, ME, for Defendant.

ORDER ON MOTION FOR SUMMARY JUDGMENT

JOHN A. WOODCOCK, JR., Chief Judge.

Because a former employee of a construction company failed to make out a prima facie case that he was terminated in violation of either the association or retaliation provision of the Americans with Disabilities Act (ADA), the Court grants his employer's motion for summary judgment.

I. STATEMENT OF FACTS ¹A. Procedural Background

On December 19, 2009, Gregory Leavitt filed a complaint against SW & B Construction Company (SW & B) in Somerset County Superior Court, alleging a violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and multiple violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Notice of Removal (Docket # 1) at Attach. 1, State Court Compl. On January, 10, 2010, SW & B removed this case to United States District Court. Notice of Removal. On April 13, 2010, Mr. Leavitt filed an amended complaint, which alleged the same violations as the initial complaint. First Am. Compl. (Docket # 12) ( Compl.). On August 11, 2010, SW & B moved for summary judgment on all claims. Def. SW & B Construction Co.'s Mot. for Summ. J. (Docket # 16) ( Def.'s Mot.). On September 20, 2010, Mr. Leavitt responded in opposition to SW & B's motion for summary judgment. Pl,'s Mem. of Law in Opp'n. to Def.'s Mot. for Summ. J. (Docket # 23) ( Pl.'s Opp'n.). On September 28, 2010, SW & B replied to Mr. Leavitt's opposition. Def.'s Reply Mem. in Supp. of Mot. for Summ. J. (Docket # 30) ( Def.'s Reply ).

At oral argument on February 11, 2001, Mr. Leavitt's counsel raised issues that had not been fully briefed, including the impact of Thompson v. North American Stainless, LP, ––– U.S. ––––, 131 S.Ct. 863, 178 L.Ed.2d 694 (2011), a case the United States Supreme Court decided on January 24, 2011, and the effect of Quint v. Staley Mfg., Co., 172 F.3d 1 (1st Cir.1999) on the pending motion. The Court suggested that counsel file post-hearing memoranda and they did so. Pl.s Post–Arg. Mem. of Law on Def.'s Mot. for Summ. J. (Docket # 42) ( Pl.'s Post–Arg. Mem.); ( Def.'s Resp. to Pl.'s Post–Argument Mem.) (Docket # 43) ( Def.'s Resp.).B. Mr. Leavitt's Employment Background

From 1995 until the end of 2006, Mr. Leavitt worked as a safety director ² for BE & K Construction Company (BE & K), a subsidiary of BE & K, Inc., at its continuing presence operations at a paper mill in Jay, Maine (Jay site).³ Pl.'s Statement of Additional Facts ¶ 30 (Docket # 25) (PSAMF); SW & B's Reply to Mr. Leavitt's Additional Facts ¶ 30 (Docket # 31) (DRPSAMF). On January 1, 2007, SW & B Construction Company, LLC (SW & B), another subsidiary of BE & K, Inc. assumed operation of the Jay site, at which time Mr. Leavitt became employed as safety coordinator ⁴ of SW & B at Jay. PSAMF ¶ 32; DRPSAMF ¶ 32. Todd Meek, the corporate Safety Director for SW & B, was his supervisor; he also reported to Kenneth Morgan, SW & B's project manager. Def.'s Statement of Material Facts ¶ 2 (Docket # 17) (DSMF); Pl.'s Opp'n to Def.'s Statement of Material Facts ¶ 2 (Docket # 25) (PRDSMF).

From 1995 to 2007, Mr. Morgan repeatedly approved pay increases for Mr. Leavitt and consistently evaluated his performance positively. PSAMF ¶¶ 33–38; DRPSAMF ¶¶ 33–38. During that same period, BE & K published articles praising his work and the work of other employees for achieving recognition from OSHA. PSAMF ¶ 39; DRPSAMF ¶ 39. In a 2005 article, Bob Fitzgerald, BE & K's corporate safety manager, stated, “Ken Morgan, site manager, and Greg Leavitt, safety manager, have done a great job.” PSAMF ¶ 39; DRPSAMF ¶ 39.

C. Tally Leavitt's Workers' Compensation Claim

In July 15, 2002, Mr. Leavitt's wife, Tally Leavitt, who worked as an expediter for BE & K Construction, suffered a work-related injury to her right arm. PSAMF ¶ 43; DRPSAMF ¶ 43. As safety director, Mr. Leavitt assigned Ms. Leavitt to light clerical work and cleaning tasks in the office. PSAMF ¶ 44; DRPSAMF ¶ 44. Ms. Leavitt was laid off in October 2002 and was not recalled in December 2002 when other laid off employees were recalled. PSAMF ¶ 44; DRPSAMF ¶ 44. In May 2003, Ms. Leavitt filed a claim for workers' compensation benefits against BE & K Construction. PSAMF ¶ 45; DRPSAMF ¶ 45. In October 2003, she filed a petition for award of workers' compensation benefits and a petition to remedy discrimination under section 353 of the Maine Workers' Compensation Act. PSAMF ¶ 46; DRPSAMF ¶ 46.

Valerie Camp, in-house counsel for BE & K, handled the legal aspects of workers' compensation claims against the company. PSAMF ¶ 40; DRPSAMF ¶ 40. Mr. Morgan oversaw the reporting of claims at the Jay site, and ensured that injured workers received medical treatment and that information went to the right people. PSAMF ¶ 41; DRPSAMF ¶ 41. Mr. Leavitt was responsible for managing employees' claims for workers' compensation, including helping them receive medical treatment, ascertaining their restrictions, and communicating with Ms. Camp and insurance claims managers. PSAMF ¶ 42; DRPSAMF ¶ 42.

Ms. Camp communicated with Mr. Morgan regarding Ms. Leavitt's workers' compensation claim and informed him that Ms. Leavitt had a claim pending. ⁵ PSAMF ¶ 47; DRPSAMF 47. Mr. Leavitt initially handled his wife's workers' compensation claim; however, he was later removed from the case because of their relationship.⁶ PSAMF ¶ 48; DRPSAMF ¶ 48.

In December 2003, Ms. Leavitt's attorney listed Mr. Leavitt as one of her witnesses at a May 24, 2004 workers' compensation hearing. PSAMF ¶ 49; DRPSAMF ¶ 49. Mr. Leavitt understood that he was to testify about Ms. Leavitt's restrictions and what he and BE & K did regarding those restrictions. PSAMF ¶ 50; DRPSAMF ¶ 50. BE & K also listed Mr. Leavitt as well as office manager Lucille Partridge as witnesses on its behalf. PSAMF ¶ 51; DRPSAMF ¶ 51. Sometime before the hearing, Mr. Leavitt expressed concern to corporate safety director, Rich Baldwin, and to Mr. Fitzgerald about the impact on his job of his involvement in Ms. Leavitt's case. PSAMF ¶ 52; DRPSAMF ¶ 52. He asked whether he would still have a job if he testified or if his wife settled her claim. PSAMF ¶ 52; DRPSAMF ¶ 52. Mr. Baldwin informed Mr. Leavitt that the claim was handled by the legal department but that his involvement was not going to affect his job. PSAMF ¶ 53; DRPSAMF ¶ 53. The day before the May 24, 2004 hearing, Mr. Morgan came into Mr. Leavitt's office and asked Mr. Leavitt what he was going to say at the hearing.⁷ PSAMF ¶ 54. Mr. Leavitt testified that he perceived Mr. Morgan's questioning as hostile and it made him fearful that BE & K might terminate his employment. PSAMF ¶ 55; DRPSAMF ¶ 55.

At the May 24, 2004 hearing, Mr. Leavitt testified in support Ms. Leavitt's workers' compensation claim. PSAMF ¶ 56; DRPSAMF ¶ 56. Among other things, he testified that Mr. Morgan and others pressured him to return Ms. Leavitt to work in her regular job rather than in alternative assignments, and that there were alternative work assignments that BE & K could have offered her. PSAMF ¶ 56; DRPSAMF ¶ 56. Ms. Partridge also testified at the hearing. PSAMF ¶ 57; DRPSAMF ¶ 57. She explained why BE & K did not recall Ms. Leavitt to employment after it laid her off. PSAMF ¶ 57; DRPSAMF ¶ 57. On August 11, 2004, the Hearing Officer of the Workers' Compensation Board denied Ms. Leavitt's petition to remedy discrimination and granted her petition for award for partial incapacity benefits from April 1, 2003 onward. PSAMF ¶ 58; DRPSAMF ¶ 58.

In 2005, Ms. Leavitt petitioned for increase of benefits due to increasing incapacity. PSAMF ¶ 59; DRPSAMF ¶ 59. That petition was set for hearing at several dates in 2006 and 2007. PSAMF ¶ 59; DRPSAMF ¶ 59. On August 10, 2006, Counsel for BE & K Construction was informed that Mr. Leavitt would be called as a witness to testify to Ms. Leavitt's inability to use her arms to perform household chores, to Mr. Leavitt's knowledge of light duty work at BE & K, and to Mr. Leavitt's inquiries to BE & K about whether work was available for Ms. Leavitt. PSAMF ¶ 63; DRPSAMF 63.

From 2006 continuing through at least June 2008, Ms. Leavitt had cumulative trauma disorder of her upper right extremity, tendinitis including flexor pollicis longus and DeQuervain's, myofascial pain syndrome, and median radial nerve irritation. PSAMF ¶ 60; DRPSAMF ¶ 60. Her health condition substantially limited her ability to perform manual work, to care for and dress herself, to drive, and to perform household chores. PSAMF ¶ 61; DRPSAMF ¶ 61. Dr. Peter Esponnette testified that Ms. Leavitt's chronic pain condition substantially limited her ability to perform her job as truck driver and expediter, and substantially limited her ability to perform any other jobs that required manual tasks.⁸ PSAMF ¶ 62; DRPSAMF ¶ 62.

Before a September 2007 hearing on the petition to increase Ms. Leavitt's benefits, Mr. Leavitt informed either Mr. Morgan or Ms. Partridge that he needed to testify at a hearing and had to take a day off. PSAMF ¶ 62; DRPSAMF ¶ 67; Leavitt Dep. 94:1795:9. At the hearing on September 12, 2007, he testified as to Ms. Leavitt's increasing incapacity, increasing pain, depression, and difficulty performing household chores and caring for herself. PSAMF ¶ 68; DRPSAMF ¶ 68.

On November 21, 2007, the Workers' Compensation Hearing Officer issued a decision, finding that Ms. Leavitt's incapacity had increased and awarding her 100% partial incapacity benefits retroactive to October 31, 2006, thus increasing her benefits. PSAMF ¶ 71; DRPSAMF ¶ 71. The decision was...