Plaintiff JOHN STARK represented by CHAD T. HANSEN PETER L. THOMPSON MAINE EMPLOYEE RIGHTS GROUP ADRIENNE S. HANSEN REBEN, BENJAMIN, & MARCH
Defendant HARTT TRANSPORTATION SYSTEMS INC represented by MELINDA J. CATERINE FISHER & PHILLIPS, LLP SHILOH D. THEBERGE FISHER & PHILLIPS, LLP
MEMORANDUM DECISION ON MOTION TO PROHIBIT PLAINTIFF FROM RELYING ON CERTAIN FACTS AND RECOMMENDED DECISION ON MOTIONS FOR SUMMARY JUDGMENT
John H. Rich III United States Magistrate Judge
Hartt Transportation Systems, Inc. (“Hartt”) moves for summary judgment as to former employee John Stark’s three claims against it, for (i) disability-based discrimination and breach of confidentiality in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (Count I), (ii) retaliation in violation of the Surface Transportation Assistance Act of 1982 (“STAA”), 49 U.S.C. § 31105 (Count II), and (iii) retaliation in violation of the Maine Whistleblower’s Protection Act (“MWPA”), 26 M.R.S.A. § 861 et seq., as enforced through the Maine Human Rights Act (“MHRA”), 5 M.R.S.A. § 4551 et seq. (Count III). See Complaint (ECF No. 1) ¶¶ 1, 110-15; Defendant’s Motion for Partial Summary Judgment (ADA/Confidentiality Claim) (“Defendant’s S/J Motion/Confidentiality”) (ECF No. 87) at 1, 10; Defendant’s Motion for Partial Summary Judgment (ADA Discrimination/MWPA/STAA Claims) (“Defendant’s S/J Motion/Remaining Claims”) (ECF No. 86) at 1, 30.
In connection with its motions, Hartt also seeks to preclude Stark from relying, in opposing summary judgment, on facts set forth in his opposing statement of material facts that are not set forth in his additional statement of material facts. See Defendant’s Expedited Motion Requesting Order Prohibiting Plaintiff From Relying on Any Additional Facts Contained in His Opposing Statement of Material Facts That Do Not Appear in His Additional Statement of Material Facts (“Defendant’s Motion/Facts”) (ECF No. 106).
Stark cross-moves for summary judgment on his claim of violations of ADA confidentiality provisions but not on causation, acknowledging that there is a triable issue as to whether those alleged violations caused Hartt to terminate his employment. See Plaintiff’s Motion for Partial Summary Judgment (“Plaintiff’s S/J Motion”) (ECF No. 84) at 1-2, 10.
Oral argument was held before me on the parties’ cross-motions for summary judgment on March 25, 2014.
For the reasons that follow, I grant in part and deny in part the Defendant’s Motion/Facts and recommend that the court (i) grant the Plaintiff’s S/J Motion as to Count I to the extent that Stark alleges that disclosures made on December 13 and 15, 2010, violated ADA confidentiality provisions, but otherwise deny it, (ii) grant the Defendant’s S/J Motion/Confidentiality as to Count I to the extent that Stark alleges that the disclosure made on October 7, 2010, violated ADA confidentiality provisions and that there was any violation of the ADA examination provisions, but otherwise deny it, and (iii) grant the Defendant’s S/J Motion/Remaining Claims as to Count III, Stark’s claim of retaliation in violation of the MWPA, and Count I to the extent that Stark alleges discrimination based on a record of disability in violation of the ADA, but otherwise deny it.
I. Applicable Legal Standards
A. Federal Rule of Civil Procedure 56
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Santoni v. Potter, 369 F.3d 594, 598 (1st Cir. 2004). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party.” Rodríguez-Rivera v. Federico Trilla Reg’l Hosp. of Carolina, 532 F.3d 28, 30 (1st Cir. 2008) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has the potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).
The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Santoni, 369 F.3d at 598. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted); Fed.R.Civ.P. 56(c). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).
“This framework is not altered by the presence of cross-motions for summary judgment.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003). “[T]he court must mull each motion separately, drawing inferences against each movant in turn.” Id. (citation omitted); see also, e.g., Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996) (“Cross motions for summary judgment neither alter the basic Rule 56 standard, nor warrant the grant of summary judgment per se. Cross motions simply require us to determine whether either of the parties deserves judgment as a matter of law on facts that are not disputed. As always, we resolve all factual disputes and any competing, rational inferences in the light most favorable to the [nonmovant].”) (citations omitted).
B. Local Rule 56
The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive “separate, short, and concise” statement of material facts in which it must “admit, deny or qualify the facts by reference to each numbered paragraph of the moving party’s statement of material facts[.]” Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party’s statement of additional facts, if any, by way of a reply statement of material facts in which it must “admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the nonmovant’s statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.
Failure to comply with Local Rule 56 can result in serious consequences. “Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loc. R. 56(f). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of fact.” Id.; see also, e.g., Sánchez-Figueroa v. Banco Popular de P.R., 527 F.3d 209, 213-14 (1st Cir. 2008); Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”).
II. Factual Background
A. Plaintiff’s S/J Motion
The parties’ statements of material facts, credited to the extent that they are either admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of Hartt as the nonmovant, reveal the following.
1. Stark Undergoes Two Pre-Employment Physical Examinations
Stark was employed by Hartt from October 8, 2010, until December 17, 2010, as an over-the-road (“OTR”) driver, based out of Hartt’s Auburn terminal. Plaintiff’s Statement of Undisputed Material Facts (“Plaintiff’s SMF”) (ECF No. 85) ¶ 1; Defendant Hartt Transportation Systems, Inc.’s Response to Plaintiff John Stark’s Statement of Undisputed Material Facts (“Defendant’s Opposing SMF”) (ECF No. 98) ¶ 1.
On October 6, 2010, Stark underwent a U.S. Department of Transportation (“DOT”) physical examination, conducted by Dr. Kevin Flanigan at Concentra in Lewiston, Maine. Plaintiff’s SMF ¶ 2; Defendant’s Opposing SMF ¶ 2. Dr. Flanigan concluded that Stark met the DOT standard, and Stark was issued a two-year DOT medical certificate. Id. ¶ 4.
On October 7, 2010, Stark went to Central Maine Conditioning Clinic (“CMCC”) for a separate post-offer, pre-employment job placement assessment (“JPA”). Id. ¶ 5. During pre-employment physicals, CMCC classifies individuals into three color categories based upon its JPA. Id. ¶ 6. Green means that the individual demonstrates the physical demands of the job. Id. Yellow means that he or she demonstrates the physical demands of the job, but there is some relevant history. Id. Red means that he or she did not safely demonstrate the physical demands of the job, and CMCC thinks the person would be unsafe to be hired. Id. Based on the results of the JPA, CMCC classified Stark as “green.” Id. ¶ 7.
The October 7, 2010, examination of Stark by CMCC was different from a DOT examination and was not a DOT examination. Id. ¶ 8. As of July 2010, Hartt had started a pilot project with CMCC relating to the post-offer, pre-employment process. Id. ¶ 10. According to the pilot project, when a driver was offered a job at Hartt’s Auburn office from July 2010 through December 2010, the offer would be contingent on meeting the requirements of the DOT physical and the JPA. Id. ¶ 11. The DOT physical and the JPA were two separate requirements. Id. ¶ 12. Stark did not complete a DOT examination with CMCC. Id. ¶ 13. Rather, he completed a JPA with CMCC, which is a separate pre-employment medical examination. Id.
During the course of the October 7, 2010, assessment, Stark also completed a medical questionnaire and a signature page, and a CMCC employee completed a job placement questionnaire based on information that he provided. Id. ¶ 14. CMCC uses the information provided on the medical questionnaire to assess whether a person can safely perform the JPA itself and the physical demands of the job of OTR driver, and whether it needs to ...