Mullen v. New Balance Athletics, Inc., Docket No. 1:17-cv-194-NT

JESSICA MULLEN, Plaintiff, v. NEW BALANCE ATHLETICS, INC., Defendant.

Docket No. 1:17-cv-194-NT

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

February 27, 2019

ORDER ON MOTIONS FOR SUMMARY JUDGMENT

In this employment action, Plaintiff Jessica Mullen alleges that Defendant New Balance Athletics, Inc. ("New Balance") discriminated against her because of her disability and retaliated against her for requesting reasonable accommodations for that disability in violation of the Maine Human Rights Act ("MHRA") and the Americans with Disabilities Act ("ADA"). Compl. (ECF No. 1). Before me are the Defendant's motion for summary judgment (ECF No. 34), and the Plaintiff's motion for partial summary judgment on the Defendant's affirmative defense of failure to mitigate damages. (ECF No. 40.) For the reasons that follow, both motions are DENIED.

BACKGROUND¹

In 2004, Mullen underwent a tubal ligation—a medical sterilization procedure. CSMF ¶ 26, 98. At the time, Mullen did not want to have more children, but she hadnot ruled out having another child at some point in the future. CSMF ¶ 99. The doctor who performed the tubal ligation informed Mullen that she could potentially have the procedure reversed and become pregnant. CSMF ¶ 100.

Years later, Mullen began to experience episodes of extreme pain caused by ovarian cysts. CSMF ¶¶ 75-76. In June of 2013, Mullen had her right ovary and fallopian tube surgically removed (a procedure referred to as a right salpingo-oophoretomy) in an effort to treat her cysts. CSMF ¶ 75. The cysts returned, and Mullen's pain became incapacitating. CSMF ¶¶ 78-83. Eventually, on April 1, 2015, Mullen opted to undergo a total hysterectomy and left salpingo-oophorectomy (the removal of her uterus and her left ovary and fallopian tube) to eliminate the cysts. CSMF ¶¶ 88-89. Before her surgery, Mullen's surgeon advised her that the procedure was permanent, Ex. 7 at 1 (ECF No. 31-6), and that it would render her incapable of conceiving or bearing children. Ex. G at 82:10-22 (ECF No. 39-7); see CSMF ¶ 96. The doctor also explained that the procedure would impact Mullen's endocrine system, because ovaries are responsible for generating estrogen and other hormones. CSMF ¶ 91. The doctor told Mullen that after her remaining ovary was removed she "w[ould] be in menopause" and would experience symptoms including hot flashes,becoming emotionally overwhelmed, and crying. CSMF ¶ 91, 93; Ex. 7 at 1. Mullen began to experience the symptoms her surgeon had described not long thereafter. CSMF ¶ 94.

Less than two months after her surgery, Mullen's doctor cleared her to work without any restrictions and, on May 18, 2015, Mullen applied for a position as a stitcher with New Balance. CSMF ¶¶ 14, 22. She was hired. See CSMF ¶ 37.²

New Balance manufactures athletic footwear at three facilities in Maine, located in Skowhegan, Norridgewock, and Norway. CSMF ¶ 1. New Balance requires new employees like Mullen to undergo a training program at its Norridgewock facility. CSMF ¶¶ 34, 36. Mullen began her training on June 23, 2015, under the instruction of trainer Julie Prentiss. CSMF ¶¶ 37-38. At some point during the beginning of Mullen's training period, Mullen mentioned to Prentiss that she had recently had a hysterectomy. CSMF ¶ 40.

Mullen had difficulty mastering one of the stitching machines. CSMF ¶ 50. On the morning of July 10, 2015, Mullen was working with that machine when she had an abrupt exchange with Prentiss. See CSMF ¶¶ 53, 103-104. The parties dispute the exact nature of the exchange, but it is undisputed that Mullen became very upset and began to cry.³ CSMF ¶ 54.

Prentiss contacted Norridgewock human resources manager Frances Fisher and brought Mullen to one of the facility's cafeterias to wait. CSMF ¶ 55. Prentiss explained to Fisher what had happened, informing Fisher that Mullen had an "outburst." CSMF ¶¶ 56, 109. Fisher talked with Mullen briefly, and then, because Mullen had been hired to work at New Balance's Skowhegan facility, Fisher called in Skowhegan human resources manager Rachel Merry. CSMF ¶¶ 57, 59. When Merry arrived, Fisher and Prentiss filled her in about what had happened with Mullen, and Prentiss told the human resources mangers that Mullen had undergone a hysterectomy three months prior that affected her emotions. CSMF ¶¶ 61, 128.

Merry and Fisher then spoke with Mullen about her purported outburst. CSMF ¶ 125. The parties' witnesses have offered conflicting testimony about that conversation. However, the following points are not in dispute:

• Mullen told Merry and Fisher that she had undergone a hysterectomy, that she was having hot flashes, and that she was working with her doctor on medications because her emotions were "all over the place." CSMF ¶¶ 126, 129; see CSMF ¶ 63.

• Merry told Mullen that "maybe this isn't the right time for you at New Balance because what you explained about the working environment and instructions from your trainer should not have set you off as it did." CSMF ¶ 133.

• Mullen asked Merry: "What does this mean? Am I being let go?" CSMF ¶ 135.

• Merry responded that "that is a decision that I want us to reach together." CSMF ¶ 136. She added that "seeing you sitting here in the condition you are in, I still feel that this is not the right time for you here at New Balance." CSMF ¶ 138.

• Mullen cried at times during the exchange. CSMF ¶ 62.

• The conversation ended with Mullen filling out and signing a resignation form. CSMF ¶ 64. On the form, Mullen indicated that the reason for her resignation was "emotional reasons." CSMF ¶ 156.

Mullen has testified to the following additional facts, all of which the Defendant denies:

• Mullen told Merry and Fisher that her doctor told her that her hysterectomy would cause her to go into early menopause over the next years. CSMF ¶ 126.

• After informing Merry and Fisher about her hysterectomy and its impact on her mood, Mullen told Merry and Fisher that all she had to do was "just wipe my face and go back to work." CSMF ¶¶ 129-130; Ex. 6 at 63:4-20, 77:24-78:7.

• Merry asked Mullen whether she had started the job too soon after her hysterectomy. CSMF ¶ 140.

• When Mullen responded that she did not believe that was the case, Merry stated that "we think it is too soon," and "we don't think this is a good fit for you." CSMF ¶¶ 141-143.

• Merry then said, "I don't think that we should have somebody working here that gets that emotional." CSMF ¶ 145.

• Mullen responded that she did not want to quit or to be fired, and that all she wanted to do was go back to work. CSMF ¶ 146.

• Merry repeatedly insisted that Mullen needed to fill out the resignation form, and Mullen demurred, saying that she needed the job and that she did not want to quit. After multiple rounds of this exchange, Mullen completed the resignation form. CSMF ¶¶ 147-155.

After Mullen left New Balance, she did not secure new employment until April of 2016, when she began working as a flagger for Northeast Safety. CSMF ¶¶ 184-186. Mullen and her boyfriend both started work at Northeast Safety on the same day. CSMF ¶ 201. During the nine months between her departure from New Balance and her hire at Northeast Safety, Mullen applied to many potential employers. CSMF ¶ 178. From July 2015 until April 2016, she consistently reviewed newspapers andthe internet for open positions and applied to any position that she believed might pay $ 10 per hour or more. CSMF ¶¶ 179-180.

At Northeast Safety, Mullen typically works 30 to 40 hours per week and is paid $ 11.50 per hour. CSMF ¶¶ 188, 190. Her hours decrease in the wintertime, and Northeast Safety does not provide Mullen with benefits. CSMF ¶¶ 189, 191. In contrast, when Mullen began working for New Balance they paid her $ 10.60 per hour and scheduled her to work forty hours per week. CSMF ¶ 175. New Balance informed Mullen that her pay would increase to $ 11.10 per hour and then to $ 11.60 per hour. CSMF ¶ 176. New Balance also offered Mullen medical, dental, vision, and life insurance, a 401(k), and short-term and long-term disability benefits. CSMF ¶ 177.

LEGAL STANDARD

Summary judgment is appropriate when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute is genuine where a reasonable jury could resolve the point in favor of the non-moving party. Oahn Nguyen Chung v. StudentCity.com, Inc., 854 F.3d 97, 101 (1st Cir. 2017). A fact is material where it could influence the outcome of the litigation. Id. On a motion for summary judgment, courts must construe the record in the light most favorable to the non-movant and resolve all reasonable inferences in the non-movant's favor. Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016).

DISCUSSION

I. The Defendant's Motion for Summary Judgment

The Defendant argues that the Plaintiff's claims must be dismissed because (i) she does not have a disability under any applicable definition of that term, and therefore cannot establish a prima facie case of discrimination; (ii) she did not request an accommodation, and therefore cannot make out a claim for failure to accommodate under either statute; and (iii) she did not engage in protected conduct, and therefore cannot have been retaliated against for engaging in that conduct. I address each argument in turn.

A. Whether New Balance Discriminated Against Mullen on the Basis of Disability

The ADA prohibits employers from "discriminat[ing] against a qualified individual on the basis of disability in regard to . . . discharge of employees." 42 U.S.C. § 12111(2); id. § 12112(a). To survive summary judgment on an ADA discrimination claim, a plaintiff must "show that [s]he has a disability within the meaning of the ADA." Mancini v. City of Providence by & through Lombardi, 909 F.3d 32, 39 (1st Cir. 2018).

The parties agree that the ADA Amendments Act of 2008 ("ADAAA") applies to the Plaintiff's claims. "In the ADAAA, Congress expressly rejected the strict standards imposed...