Venable v. T-Mobile Usa, Inc.

603 F.Supp.2d 211

Stacy VENABLE, Plaintiff, v. T-MOBILE USA, INC., Defendant.

No. CV-07-168-B-W.

United States District Court, D. Maine.

March 20, 2009.

Andrea V. W. Wan, Arthur J. Greif, Julie D. Farr, Gilbert & Greif, P.A., Bangor, ME, for Plaintiff.

Richard G. Moon, Alexia Pappas, Anne Birgel Cunningham, Verrill Dana LLP, Portland, ME, for Defendant.

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

JOHN A. WOODCOCK, JR., Chief Judge.

The United States Magistrate Judge filed with the Court on November 14, 2008 her Recommended Decision, 2008 WL 4937810 (Docket # 42) (Rec. Dec.). The Defendant T-Mobile USA, Inc. (T-Mobile) filed its objection to the Recommended Decision on December 4, 2008 (Docket # 44) (Def.'s Obj.) and the Plaintiff Stacy Venable filed her response on December 11, 2008 (Docket # 45) (Pl.'s Resp.). The Court has reviewed and considered the Magistrate Judge's Recommended Decision, together with the entire record; the Court has made a de novo determination of all matters adjudicated by the Magistrate Judge's Recommended Decision; and, it concurs with the recommendations of the United States Magistrate Judge for the reasons set forth in her Recommended Decision.

I. DISCUSSION

In her Recommended Decision, the Magistrate Judge recommended that the Court deny T-Mobile's motion for summary judgment on Plaintiff's action alleging violations of the Maine Human Rights Act (MHRA). Ms. Venable is proceeding on two theories under the MHRA: (1) wrongful denial of a reasonable accommodation; and, (2) discriminatory discharge. T-Mobile contests three areas of the Magistrate Judge's recommendation: (1) Ms. Venable's ability to perform the essential functions of her job; (2) the existence of a reasonable accommodation; and, (3) Ms. Venable's showing that T-Mobile's explanation for her termination was pretextual.¹

A. Qualified to Perform Essential Functions

To succeed on either theory, Ms. Venable must show that she was qualified to perform the essential functions of her job with or without a reasonable accommodation. Rios-Jimenez v. Sec'y of Veterans Affairs, 520 F.3d 31, 41 (1st Cir.2008).² Ms. Venable was employed as a trainer at T-Mobile. Among other skills, the T-Mobile trainer job description includes as a required qualification the "[a]bility to build rapport with others and create a team environment." Statement Material Facts in Support of Def's Mot. for Summ. J. (Docket # 30) (DSMF) at Attach. 2 at 22 (Docket # 30-3). T-Mobile contends that, unrelated to her epilepsy medication, Ms. Venable is unable to perform this essential function of her job and concludes that she is not a qualified individual under the MHRA.

As evidence, T-Mobile cites Ms. Venable's agreement that she is "abrasively honest" and "upfront"; her admission that she has a hard time hiding her feelings and experiences difficulty dealing with people who do not like her; her "making faces" or expressions during team meetings; her receipt of an "unacceptable" rating in the performance category of "Practice Team Together Team Apart" in her T-Mobile performance evaluation for 2005; her tendency, noted in the 2005 evaluation, to show frustration with facial expressions and disparaging remarks; her disrespectful comments about human resources in August 2005; and, her receipt in 2005 and during the 2005 evaluation process of coaching and counseling related to her office interactions and personal accountability. Def.'s Obj. at 5-6.

T-Mobile strenuously argues that it, not the Court, has the legal authority to define the essential functions of Ms. Venable's employment position and it, not the Court, has the legal authority to determine whether an employee is meeting its employment expectations. It cites 42 U.S.C. § 12111(8) as stating that the "employer's judgment governs a determination of what functions of plaintiff's job are `essential,'" Def.'s Obj. at 3, and Gillen v. Fallon Ambulance Service, Inc., 283 F.3d 11, 25 (1st Cir.2002), for the proposition that "courts must pay heed to an employer's judgment as to what functions of a job are essential." Def.'s Obj. at 4. T-Mobile says that it defined the essential functions of Ms. Venable's position to include personal qualities she has admitted she simply does not possess, such as the ability to work within a team, to build rapport with others, and to avoid acting in a rude, disrespectful, or abrasive manner. Id. at 3-6.

T-Mobile quotes the familiar teaching of the First Circuit that "[c]ourts may not sit as super personnel departments, assessing the merits—or even rationality—of employers' nondiscriminatory business decisions." Id. at 8-9 (quoting Boyajian, 587 F.Supp.2d at 305); Mesnick v. General Electric Co., 950 F.2d 816, 825 (1st Cir. 1991). T-Mobile points to its employee evaluation of Ms. Venable in January 2006 in which it ranked her as "unacceptable" in the performance category of "Practice Team Together Team Apart" and criticized her for openly showing frustration when faced with difficult situations or decisions. DSMF ¶¶ 72-73. T-Mobile concludes that the Court should not—indeed cannot—second guess its considered conclusion that Ms. Venable was not meeting its job expectations and to rule otherwise would be to act as a super personnel department in violation of First Circuit law. In effect, so long as the employer could point to some flaw in an employee's performance that it can cast as failing an essential function, T-Mobile would have its decision to terminate the employee be immune from judicial review.

However, to accept T-Mobile's position would effectively eliminate all but the most egregious instances of employment discrimination, and it turns out that T-Mobile substantially overstates the degree of deference a court owes an employer's range of discretion. The statute does not say that the "employer's judgment governs a determination of what functions of plaintiff's job are `essential.'" Def.'s Obj. at 3. The statute says that "consideration shall be given to the employer's judgment as to what functions of a job are essential." 42 U.S.C. § 12111(8). The court must consider the employer's judgment, but it is inaccurate to say that the employer's judgment governs the court's consideration. Thus, although T-Mobile accurately cites Gillen as requiring the court to "pay heed" to an employer's determination of what is an essential function of the job, T-Mobile ignores the Gillen Court's statement that "the employer's good-faith view of what a job entails, though important, is not dispositive." Gillen, 283 F.3d at 25; Ward v. Mass. Health Research Inst., 209 F.3d 29, 34 (1st Cir. 2000) (noting that an employer's view of job requirements generally should be given "substantial weight," but it is "only one factor" in the mix); EEOC v. Amego, Inc., 110 F.3d 135, 144 (1st Cir.1997). Boiled down, T-Mobile would require an employee to produce direct evidence of unlawful motive and that is simply put, not the law. DeCaire v. Mukasey, 530 F.3d 1, 20 (1st Cir.2008).

It is true that T-Mobile described Ms. Venable's performance as unacceptable in one category in its January 2006 evaluation. DSMF ¶ 72. But, it is also true that T-Mobile did not then terminate Ms. Venable or even begin a stepped discipline process. Instead, her training manager, Todd Hicks, "developed a set of goals for Plaintiff focused primarily on her interactions with others, and her need to take accountability for her dealing with difficult students." Id. ¶ 74. T-Mobile characterized Mr. Hicks's comments to Ms. Venable in January 2006 as "coaching." ¶¶ 79-80. Coachable flaws in January somehow became intolerable employment deficiencies by June, and Ms. Venable is entitled to attempt to persuade a jury that the critical difference was her predicted response to Topomax and T-Mobile's refusal to make a reasonable accommodation for her disability.

As the Magistrate Judge concluded, "[a]dditional evidence in the record can support a finding that T-Mobile is being hyperbolic about Venable's pre-Topomax demeanor and conduct for the sake of litigation."³ Rec. Dec. at 19. Most notable is Ms. Venable's designation by Mr. Hicks—Ms. Venable's training manager at T-Mobile and the person who coached and counseled Ms. Venable in 2005, and later completed her performance evaluation for that year—as "Trainer of the Month" in January 2006, a period when Ms. Venable was having conflict with some of her trainees.

The timing of the award allows at least two inferences. A jury might reasonably conclude that, despite Ms. Venable's unrestrained personality, T-Mobile regarded her as meeting (and, in fact, exceeding) the essential functions of her position, including her role as team-builder. Alternatively, a jury might find that, in practice as opposed to official policy, T-Mobile did not view team building as an essential function of the trainer position and so Ms. Venable's deficiencies in this area did not disqualify her from recognition. See Laurin v. Providence Hosp., 150 F.3d 52, 59 (1st Cir.1998) (finding shift-rotation was an essential function for non-senior staff nurses where defendant hospital had "always required all non-senior staff nurses to rotate shifts, and [had] never made an exception"); see also Milton v. Scrivner, Inc., 53 F.3d 1118, 1124 (10th Cir.1995) ("The initial inquiry in determining whether a job requisite is essential is whether an employer actually requires all employees in the particular position to perform the allegedly essential function."); Taylor v. Rice, 451 F.3d 898, 907 (D.C.Cir.2006) (concluding that issues of fact regarding job's essential functions precluded summary judgment for employer because the record showed that, in practice, employer did not require all employees to abide by claimed essential function). Both inferences find additional support from record evidence that T-Mobile never formally disciplined Ms. Venable for her performance.

None of this is to say that...