Thompson v. Gold Medal Bakery, Inc.

989 F.3d 135

Robert J. THOMPSON, Plaintiff, Appellant,

v.GOLD MEDAL BAKERY, INC., Defendant, Appellee.

No. 20-1027

United States Court of Appeals, First Circuit.

March 2, 2021

John R. Mitchell, Fall River, MA, for appellant.

Christopher B. Kaczmarek, with whom Littler Mendelson, P.C., Boston, MA, was on brief, for appellee.

Before Barron and Selya, Circuit Judges, and Katzmann, Judge.^*

BARRON, Circuit Judge.

This appeal concerns Robert Thompson's suit against his former employer, Gold Medal Bakery, Inc. ("Gold Medal"), after it fired him in August of 2016. Thompson alleged in his complaint, among other things, that Gold Medal terminated his employment in violation of state and federal disability discrimination laws and the anti-retaliation provision of the Family and Medical Leave Act ("FMLA"). The District Court granted summary judgment to Gold Medal on these claims.

The District Court first granted summary judgment to Gold Medal on Thompson's state and federal disability discrimination claims based on representations that he had made, following his firing, to the Social Security Administration ("SSA") in applying for Social Security and Disability Insurance ("SSDI") benefits. The District Court determined that those representations, which concerned when his disability had rendered him totally unable to work, estopped him from making the case that a reasonable juror could find that he was able to return to work at the time that he was fired, thereby precluding him from proving a necessary element of his disability discrimination claims. With respect to Thompson's FMLA retaliation claim, the District Court granted summary judgment to Gold Medal, because it determined that Thompson had failed to establish that there was a genuine issue of material fact as to whether Gold Medal's asserted reason for terminating his employment was either itself evidence of its intent to retaliate against him for taking FMLA-protected leave or a pretext for such a retaliatory intent.

Thompson now challenges each of these rulings in this appeal. We affirm.

I.

Because Thompson's appeal challenges a pair of summary judgment rulings, we recount the facts, drawn from the record, in the light most favorable to him. McKenney v. Mangino, 873 F.3d 75, 78 (1st Cir. 2017). We begin with the events that led up to Gold Medal firing him. We then recount Thompson's efforts to apply for SSDI benefits. Finally, we describe the travel of the case.

A.

Thompson began working for Gold Medal in 1979 as a production worker. He held various positions at the company over the course of his employment there, before becoming a production technician in 2010.

In January of 2016, Thompson suffered a knee injury. He consulted with his physician about the injury, who referred him to Dr. Michael Langworthy, an orthopedic surgeon. Dr. Langworthy recommended a complete knee replacement surgery, and the operation was scheduled for May 9, 2016.

On April 20, 2016, Thompson requested medical leave from Gold Medal, to begin on the date of his surgery. The FMLA entitled Thompson to twelve work weeks of unpaid leave in connection with this medical condition. See 29 U.S.C. § 2612(a)(1)(D), (c). Thus, under the FMLA, he was entitled to take unpaid leave from the date of his surgery until August 1 of that year. Moreover, Gold Medal's short-term disability policy entitled Thompson to be paid eightyfive percent of his salary during that FMLA-protected leave.

Thompson attached to his leave request that he filed with Gold Medal a form that had been signed by Dr. Langworthy's office. The form indicated that Thompson would be "unable to work" as of May 9 due to his medical condition and that his "[e]xpected ... return to work date" was thirteen weeks later, on August 9, 2016.

Around the same time that he requested FMLA leave from Gold Medal, Thompson met with Christina Marquez, a human resources employee at the company. In that meeting, she informed him that he was entitled to more than thirty weeks of leave from Gold Medal on account of the fact that he had worked at the company for many years.

On May 9, Thompson had his surgery as planned. Then, several weeks later, on May 31, Gold Medal sent him a letter, signed by Marquez, that informed him that his leave request had been approved. The letter stated that Gold Medal would "hold open" Thompson's job there "or an equivalent position" for "no longer than 12 weeks in a 12 month period measured forward from the date the leave began."

The letter made no mention of any other leave that Thompson was entitled to receive. The letter also stated that he was "required prior to [his] return to work to submit a Fitness for Duty Certificate from [his] health care provider indicating that [he was] cleared to return to work full duty."

Gold Medal sent with the letter a printout that set forth more detail about the company's leave policy. It stated that "[a]bsent unusual circumstances" FMLA-protected leave can be "no more than twelve weeks."¹

As of that time, Thompson's first scheduled appointment with Dr. Langworthy to evaluate whether Thompson was ready to return to work was set for August 12, which was after his approved leave was set to expire. On June 24, 2016, Thompson called Marquez and requested that Gold Medal extend this previously granted paid leave through August 12.

Marquez informed Thompson by phone on August 1 that his request to extend his leave to August 12 had been approved. But, around August 9, Dr. Langworthy's office rescheduled Thompson's slated August 12th appointment and moved it back to September.

At that point, Thompson called Dr. Langworthy's office to seek an earlier appointment, and the office moved his September appointment up to August 17 after Thompson agreed to see a different doctor. Thompson then called Marquez again on August 9 to inform her that he would not be able to obtain the fitness-for-duty certificate that Gold Medal required him to have for him to be able to return to work until August 17.

Marquez initially informed Thompson on that call that it "shouldn't be a problem" for him to remain on leave through August 17. She then emailed the Vice President of Human Resources at Gold Medal to inform him that she had extended Thompson's leave until August 17. But, later that same day, Marquez emailed John Ferreira, Thompson's supervisor, to inform him that Thompson needed an extension of his leave to August 17.

Ferreira emailed back, asking "[w]hy are we extending his FMLA" leave. Marquez replied by email: "His FMLA [leave] ended on 8/1/2016, but since we knew of a follow-up appointment date, we extended his FMLA time until his next appointment date (8/17)."

Ferreira stated in his deposition that he recalls that he then told Marquez that unless Gold Medal "had to extend" Thompson's leave, it should not be extended and that Thompson had to return to work with a fitness-for-duty certificate.² Ferreira also testified that he did not recall Marquez telling him that Thompson originally had scheduled an appointment with his doctor to evaluate his fitness to return to work for August 12 but that his doctor's office had then rescheduled that appointment for August 17.

Marquez called Thompson on August 11 to tell him that Gold Medal would not extend his leave to August 17. Gold Medal also sent Thompson a letter, postmarked August 12, that stated that he had "exhausted [his] available leave of absence time," that his "latest physician's appointment" would "keep him out until at least August 17, 2016," and that, accordingly, he was being terminated, effective August 12, 2016.

On August 17, Thompson had his follow-up appointment with Dr. Langworthy's office. After the appointment, the office sent forms to Gold Medal that certified that Thompson had no functional limitations. In a section described as "information about the patient's inability to work," (capitalization altered), the doctor noted that Thompson had "return[ed] to [his] prior level of functioning." The form also noted that Thompson had "achieved maximum medical improvement." The only functional limitation that was listed on the form was that Thompson should avoid squatting.

B.

Following this series of events, Thompson, newly unemployed, applied on August 23, 2016, to the SSA for benefits through the SSDI program. In his application for those benefits, Thompson stated, under penalty of perjury, that he "became unable to work because of [his] disabling condition on May 8, 2016," and that, as of the date of filing, August 23, 2016, he was "still disabled." (capitalization altered).

On one form Thompson submitted to the SSA, in response to the question, "What were you able to do before your illnesses, injuries, or conditions that you can't do now?" he stated "everything." He noted that he was experiencing "[e]xtreme pain while sleeping," that he was unable to put on his pants or stand in the shower, and that he was "very unstable." He also stated that he was "[n]ot comfortable going to family events" and that his condition affected his ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, hear, climb stairs, complete tasks, concentrate, and use his hands, and that it impeded his memory.

As part of the SSDI application process, Thompson also underwent a psychological evaluation. His evaluator described him as having a major depressive disorder and a generalized anxiety disorder, conditions which stemmed in part from "anxiety about his health and depression regarding his present circumstances and his future."

The SSA notified Thompson on October 17, 2016, that it had determined that he was disabled as of May 8, 2016. The SSA found that he suffered from three medically determinable impairments: osteoarthrosis and allied disorders, spine disorders, and fibromyalgia. The SSA further found that Thompson had significant exertional limitations, including that he should only lift and/or carry up to ten pounds frequently and up to twenty pounds occasionally.

The SSA set Thompson's...