Pimental v. Dartmouth-Hitchcock Clinic

236 F.Supp.2d 177

Mary Ann PIMENTAL, Plaintiff v. DARTMOUTH-HITCHCOCK CLINIC, Defendant

No. CIV. 01-292-M.

United States District Court, D. New Hampshire.

December 30, 2002.

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John S. Krupski, Cook & Molan, Concord, NH, for Plaintiff.

Emily G. Rice, Orr & Reno PA, Concord, NH, for Defendant.

ORDER

MCAULIFFE, District Judge.

Mary Ann Pimental brings this action against her former employer, Dartmouth-Hitchcock Clinic ("DHC"), seeking damages for alleged violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. She also advances state law claims for breach of contract and wrongful termination, over which she says the court should exercise supplemental jurisdiction. DHC denies any wrongdoing and moves for summary judgment as to all of plaintiff's claims. Plaintiff objects.¹

Standard of Review

When ruling on a party's motion for summary judgment, the court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). Summary judgment is appropriate when the record reveals "no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In this context, "a fact is `material' if it potentially affects the outcome of the suit and a dispute over it is `genuine' if the parties' positions on the issue are supported by conflicting evidence." Intern'l Ass'n of Machinists and Aerospace Workers v. Winship Green Nursing Center, 103 F.3d 196, 199-200 (1st Cir.1996) (citations omitted).

If, however, the non-moving party's "evidence is merely colorable, or is not significantly probative," no genuine dispute as to a material fact has been proved, and "summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citations omitted). As the Court of Appeals for the First Circuit has observed, "the evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial. Conclusory allegations, improbable inferences, and unsupported speculation will not suffice." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997) (citations and internal quotation marks omitted).

Background

Viewed in the light most favorable to plaintiff, the material facts are as follows. Plaintiff is a licensed registered nurse who began working at DHC in 1992 in various non-salaried, part-time positions, for between 20 and 24 hours each week. In April of 1997, she applied for, but did not receive, a position as the "Operations Manager for Nurse First." In May, however, she was promoted to the core management team of the Nurse First Program. At that point, she was made a salaried, exempt employee, with the expectation that she would work a 35 hour week.

In September of 1998, plaintiff was diagnosed with stage III breast cancer. As a consequence, she was given approximately eight months of medical leave, during which time she underwent a modified radical mastectomy, radiation treatment, and chemotherapy (subsequently, she also underwent reconstructive surgery). She does not deny that DHC afforded her all the medical leave she requested under the Family Medical Leave Act or that she was provided with all disability pay to which she was entitled.

While plaintiff was on leave, the Nurse First management team was reorganized and two of the management positions, including hers, were eliminated. Shortly before returning to work, plaintiff expressed an interest in securing a position as a staff nurse in the Nashua Pediatrics Department. But, although the position entailed 40 hours of work per week, plaintiff said she wanted to work only 35 (or 32, depending upon whether one credits her deposition testimony or her EEOC charge of discrimination). Plaintiff did not get the job, and she claims that the woman who did was less qualified than she for the position and further claims that DHC refused to hire her because of her cancer.²

In June of 1999, plaintiff was offered a position as a staff nurse in the Nurse First Program, a job that required 35 hours per week. It appears that she declined that offer and, shortly thereafter, inquired about a staff nursing position in the Nashua Urgent Care center — a position that called for only 20 hours of work per week. Notwithstanding that fact, plaintiff proposed working for 24 hours per week in that position and combining it with an additional 6 hours per week of quality assurance work. Her goal was to fashion a job that provided at least 30 hours of work per week, thereby making her eligible for "H3" status and greater benefits. DHC, however, declined that proposal, saying the department was not budgeted for an "H3" position and all it needed was someone to work 20 hours per week. Although disappointed, plaintiff appears to have accepted the position as originally offered. She does, however, seem to suggest that DHC's rejection of her efforts to combine various positions to obtain "H3" status constitutes a failure to reasonably accommodate her claimed disability. See Plaintiff's memorandum at 6.

Shortly thereafter, plaintiff interviewed for the West Center Manager of the Nashua Division of DHC. DHC did not hire her for that position, claiming that the woman who was eventually hired was simply more qualified than plaintiff.

Finally, in September of 1999, plaintiff expressed interest in an Urgent Care position in Manchester, but was soon told that DHC was not going to fill the position at that time. As part of her (implicit) evidence of unlawful discrimination, plaintiff says she saw that very position advertised in the newspaper approximately two months later. DHC suggests that the decision to fill the position in December, rather than September, was purely financial in December, its budget permitted it to fill that vacant position, albeit for only 30 hours per week, rather than the 36 hours per week originally contemplated. Plaintiff, on the other hand, suspects she was not given the position when she originally inquired about it because DHC harbored some discriminatory animus against her based upon her cancer. See Pimental deposition, day 2 at 107 ("I don't see any other reason whey they would have not hired me for the position.").³

In October of 1999, plaintiff applied for, and obtained, a full-time position as a school nurse in the Londonderry School District. She began working there in early November, while remaining in her position at DHC. In December of 1999, however, she notified DHC that she was resigning, effective January 1, 2000. She did, however, remain as a per diem employee, apparently making herself available to DHC when its need for additional nursing staff coincided with her availability (though it is unclear whether she ever actually worked on a per diem basis after her resignation).

DHC contends that it declined to hire plaintiff for the various positions she sought because other, better qualified applicants were hired instead, or because plaintiff sought hours and/or benefits above those for which the particular department was presently budgeted. It categorically denies that plaintiff's cancer played any role in its hiring decisions. Plaintiff, on the other hand, says DHC's refusal to hire her for those positions was motivated by a discriminatory animus, based upon her cancer.

Discussion

Title I of the ADA prohibits employers from discriminating against qualified individuals with disabilities. To establish a prima facie case of disability discrimination under the ADA, plaintiff must show that: during the time frame relevant to this suit, she suffered from a disability, as that term is used in the ADA; she was able to perform the essential functions of her job, either with or without reasonable accommodation; and she suffered an adverse employment action because of her disability. See, e.g., Lebron-Torres v. Whitehall Labs., 251 F.3d 236, 239 (1st Cir.2001).⁴

The ADA defines "disability" as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Plaintiff asserts that she is a qualified individual with a disability under each of these three definitions. DHC disagrees.

I. Plaintiff's Impairment and Section 12102(2)(A).

In determining whether an employee falls within the scope of section 12102(2)(A), courts apply a three-part test.

First, we consider whether [the plaintiff's] condition constitutes a mental or physical "impairment." Second, we identify the life activities upon which [the plaintiff] relies to determine whether they constitute "major life activities." Major life activities are only those that are "of central importance to daily life." Third, we must determine whether the impairment substantially limits the major life activity identified. To be substantially limiting, the impairment's impact must be permanent or long-term.

Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1167 (1st Cir.2002) (citations omitted). See also Bragdon v. Abbott, 524 U.S. 624, 631, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998).

There is no question that plaintiff's breast cancer constitutes an "impairment" for purposes of the ADA. See 29 C.F.R. § 1630.2(h). See also Ellison v. Software Spectrum, Inc., 85 F.3d 187, 190 (5th Cir. 1996) (holding that the plaintiff's breast cancer was an impairment under the ADA); Treiber v. Lindbergh School Dist., 199 F.Supp.2d 949, 958 (E.D.Mo.2002) (same). But, although plaintiff's cancer qualifies as an impairment, it does not necessarily follow that she is also "disabled" within the meaning of the ADA. See Bailey, 306 F.3d at...